Thread by @barandbench

#Breaking: Injunction suit filed in the Delhi High Court against the release of the film The White Tiger tonight at 12 on OTT platform.

Matter being hearing now by Justice C Hari Shankar

What is the cause for coming at this time?: Court

Claim is purely monetary claim. Why should I give an injunction today?: Court

The fact that this movie is being released has been in the public domain for more than a month… you are aware…: Court

#WhiteTiger

Adv Kapil Sankhla for petitioner John Hart Jr says he is resident in America. He adds that understanding was that it would be released in theatres. There was no way this would release OTT

#WhiteTiger
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Court says it is of no use to say that petitioner has made other prolific movies. Petitioner should show why injunction should be given last minute, Court says.

Unless you can make a cast-iron case ... : Court

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Staying in US in no ground. It is a world wide web. Simple google search you would know movie is being released... you cannot surprise... last minute....: Court

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Adv Sankhla says there were certain due diligences made in America before Hollywood movies are made. These diligences were not made in this case, he says.

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According to you, when did you get to know?... Give me the date. You cannot ask for an injunction on vague assertions: Court

We sent them a legal notice in October 2019 when we got to know Netflix is making this movie: Adv Sankhla

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A cease and desist letter was sent in 2019 and you chose to file a plaint to stop the release of the movie with 24 hours. Next: Court

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Adv Sankhla says that there was an impression that the movie is not being shot in between Corona period.

Who gave you that impression? What material has been placed on record to say you got that impression?: Court

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In Hollywood, any studio does a due diligence before movie is shot. If diligence is done, they would have seen copyright is with me and contacted me: Adv Sankhla

Where have you shown that the (due diligence) process exists? Court asks

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I am assuming arguendo you have copyright: Court

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I had secured rights from author back in 2008-2009: Adv Sankhla says

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My right is unchallenged since that day. I am a man of some standing in Hollywood. I would be under bonafide belief that process that was followed throughout would be followed in this case:Adv Sankhla

I did not know some person sitting in India would flout this process, he adds

Your list of dates doesn't seem to indicate that the defendants are simply someone sitting in India. So don't tell me "somebody sitting in India" has suddenly violated your copyright and taken a movie: Court

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Did not know that instead of a movie in Hollywood under laws governing it, the right would be infringed by the defendant, says Adv Sankhla

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Can you show something to show that led you to believe this movie would be in Hollywood?: Court

The producer is of Hollywood: Adv Sankhla

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Sonia Mudbhatkal is in Hollywood... she is the first Tony-nominated producer of Hollywood. She contacted plaintiff no.1 (Hart) to make the movie. ... I purchased ten days after slumdog millionaire (movie came out): Adv Sankhla

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Court ponders on full form of OTT platform.

Adv Sankhla mentions that it may be "Over The Top"

Over the top would have million meanings Mr Sankhla (laughs): Court

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Court asks if advanced notice was served to other side. Adv Sandeep Sethi is appearing for @netflix, Court is informed

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2011 there are differences between the plaintiff (Hart) and his partner. Therefore, there is a substantial delay in launching the movie, Adv Sankhla says

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Adv Sankhla informs that there was a literary agreement.

Literary agreement between you and the author?:Court

Yes, me and Mr Aravind Adiga: Adv Sankhla

This gives you absolute right to do what?: Court

To make movie adaptation out of this, milord: Adv Sankhla

#WhiteTiger

My right of adaptation of movie is absolute. This is an OTT release on Netflix. For them, it is a commercial venture but not for me. I can never make the grand movie I had envisaged. This dream of mine can never be compensated in terms of money milord: Adv Sankhla

#WhiteTiger

This was the highest-selling book after "Life of Pi". Slumdog Millionaire made 8 Oscars. This book is more complicated, has more layers than "Q&A".

It (White Tiger) was meant to be made on a grand scale.

-- Adv Sankhla says

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You may have grand dreams. Merely saying my dreams will be shattered is no ground to say there should be an injunction on the release of the film. We are coming back to square one: Court

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Good luck to you, but since Oct 2019 at least you were well aware that @netflix was contemplating making a movie: Court

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You have sent a legal cease and desist in 2019. You have come to the court less than 24 hours before the movie's release: That is more than enough to say injunction cannot be granted in view of existing legal position: Court

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However watertight your case may be, a person who approaches court in last minute has to make out... stopping a release of a movie has serious ramifications on producers, director, channel... you are not the only one whose finances are in consideration: Court

I am not trying the suit. I do not know what the ultimate outcome of the suit will be: Court

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For you, it is more a question of dreams being shattered. (but an injunction) is going to have serious financial repercussions on the makers. They also may have dreams that the movie may launch them, that it will become a hit: Court

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Prima facie case, irreparable loss, balance of convenience - these considerations become relevant the last minute: Court

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This is my swan song. That entitles me to the protection of this Court... with the history... kind of awards I have received, I deserve the mercy of the court. The financial ramifications are limited (for the other side): Adv Sankhla

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Except for the fact that I have come belatedly to the court, I have passed the other tests: Adv Sankhla

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This (release of White Tiger on @netflix) would be the height of piracy. I have purchased rights on the international forum... in India itself, these rights are being taken away: Adv Sankhla

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If it were theatre release, there would have been checks and balances, which have been given go by since it is an OTT release, Adv Sankhla argues.

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Heavens won't fall for Netflix (if the injunction is granted today). This is just another movie for them to release... for me my right would go away: Adv Sankhla

@netflix

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Adv Sandeep Sethi is now making submissions for Netflix.

@netflix

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Adv Sethi: They chose to approach the Court one day before the release of the film.

@netflix

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Adv Sethi: None of these notices referred to in the plaint have been filed. There is an attempt to conceal facts...

@netflix

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According to you, who is the rightful owner? Court

By assignment, plaintiff's company called Particle Media Pvt limited: Sethi

So you got the rights from Particle? Court asks

You said "plaintiff's company": Court

Sorry, I meant "defendant's company".: Adv Sethi

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Adv Sethi says that plaintiff 2 waived all claims against Particle Media after settlement. Court records the submission.

Adv Sethi: This agreement is also not disclosed, and certainly no copy filed.

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The plaint filed lacks disclosure and also involves concealment: Adv Sethi

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Adv Sethi: .... even the plaint is not signed by the plaintiffs... so there is no proper plaint before your Lordships to agitate a claim.

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Adv Sethi: The power of attorney filed of the first plaintiff on page 560... the last line of first para is 9 Dec 2020. And your Lordship is approached on January 21 for an injunction today.

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Hearing briefly witnesses electronic clock voicing that "It's eight o clock"

I know its eight o clock, but there are things remaining, Justice Hari Shankar remarks orally, in a lighter vein

#CourtroomExchange

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Adv Sidharth Chopra, for various defendants, says his is largely adopting arguments made by Adv Sandeep Sethi.

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This case is a textbook example for why no ad-interim relief should be given, as was in the case in the "Lootcase case" where Court deprecated the practice of coming to court last-minute, Adv Chopra submits.

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Way back in 2013-14, there was a similar claim made by plaintiff and plaintiff had waived all claims on a settlement: Adv Chopra

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I am not some brazen violator of copyright. We too undergo diligence. We are a responsible company. : Adv Chopra

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We have proceeded to make this film not in a vacuum but with Lava Media (Defendant 7), which is a subsidiary of a company which is Defendant 1: Adv Chopra

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This is at best a monetary dispute, and non-existent dispute, going by submissions by Sethi: Adv Chopra

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We are told OTT can be delayed by days. We have a calendar of releases lined up. To trivialise an OTT release is really an irresponsible submission. What is amazing is on perusal of para 22 .. has enough material to deny this entity an interim injunction: Adv Chopra

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Promotions for film commences in October. The film has already been released in US theatres on 11 Jan 2021: Adv Chopra

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Adv Sankhla is making submissions for Plaintiffs

Referring to the defendant's arguments that Particle Media (the company defendants are claiming has right in the book) is owned by the defendant 1 (Mukul Deora) "My instructions are that this incorrect", says Sankhla

Raj Lakhani, who is not a party here, owns Particle Media. There have been various shell companies created. It is to confuse the issue as regards ownership of book rights, Adv Sankhla submits.

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Adv Sankhla responds to submissions tht Plaintiff 2, Sonia Mudbhatkal had waived rights in the book following settlement in 2013-14

Plaintiff 2 has no rights in the book. As pointed out from the agreement, the right is assigned to plaintiff 1 (Hart) and not plaintiff 2: Sankhla

How do we know P1 hasn't assigned it (adaptation rights) to P2?: Court

Then that agreement would be stated by them. there is no such agreement: Adv Sankhla

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Are you denying... that there was an agreement between Particle and plaintiff relating to the book's rights?: Court

I am taking instructions right now: Adv Sankhla

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No one has challenged the agreement between Plantiff 1 and author. Particle is not owned by Defendant 1: Adv Sankhla

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Sankhla makes submissions on why there was some delay in approaching the Court.

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Law is very clear, but when it is a fact when the right (to the book) has been purchased by P1 at a substantial sum of money from the author and when P1 is in the process of making a grand move, heavens will not fall if OTT release is delayed by few days: Adv Sankhla

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Adv Sankhla says there would be a travesty of justice if relief is not granted.

Where would the law protect a person who has international rights in a book? Where has Particle got any right?: Sankhla

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As soon as Plaintiff 1 came to know, he came to court: Adv Sankhla

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First of all, let us get one thing on the table. The suit was jointly filed by plaintiffs 1 and 2... you are appearing for both. You cannot say "P2 gave some agreement, P1 has the copyright, whatever P2 had with Particle is of no concern": Court

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I am not going to separate P1 and P2: Court

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Adv Sankhla reads excerpts of certain agreements

These paragraphs that you have read indicate there is a veritable network of agreements... you had not chosen to place any of these on record, except to make an averment in the plaint: Court

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If you think I am going to give you relief without placing any of these on record, you are badly mistaken. Why should I not take... that this is not an open and shut case of blackmail?: Court

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Don't blame corona for everything. You are aware from 2019..for a half baked story, you want the court to give you an interim injunction? I am not convinced. There is absolutely nothing: Court

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Milords may just give me one minute: Adv Sankhla

Your conduct is inviting severe costs now. This is the limit. I never realised... If it was a writ petition, I would have thrown out right away. Since it is a suit...: Court

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Your client needs to be thrown out on the ground of suppression: Court

This is just an attempt to browbeat the defendants. ... I am not in the least satisfied with bona fides of the client, Justice Hari Shankar adds.

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It would have been another case if the plaintiff was not a reputed producer, Adv Sankhla says

It makes no difference to me. don't keep telling me your client is the ultimate producer made 20 films and won Oscars: Court

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Sankhla urges Court for 24 hours to get the documents.

I (Hart) am in America: Adv Sankhla

You remain there: Court

Protect me for 24 hours: Sankhla

I will not protect you for 24 minutes, forget about hours: Court

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Justice Hari Shankar is now dictating orders. Court records submissions made by Adv Sankhla for the plaintiffs.

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Court records plaintiff's submissions that there was a literary auction agreement with Plaintiff 1, that "The White Tiger" was to be an Oscar-worthy production, submissions on the various creditable achievements of Plaintiff 1 etc.

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Court records submission that Plaintiff 1 (Hart) had allowed Plaintiff 2 (Sonia Mudbhatkal) to work on the movie, but that no rights devolved on defendants.

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Court records plaintiff's submission that Plaintiff 1 came to know of @netflix making the film only in October 2019 and that a legal notice was issued, and that there was no impression that film shooting was taking place amid COVID pandemic.

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Court records plaintiff submission that in Hollywood, a copyright holder has no reason to apprehend a copyright infringement & that any studio seeking to make a film based on Aravind Adiga's novel would have contacted P1 as "rightful copyright holder" in the interest of diligence

Court records Adv Sankhla's submissions (for plaintiffs) that defendants made several misrepresentations to which plaintiff 1 succumbed.

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Court records submission by the plaintiff that allowing Netflix release of the film tonight would lead to irreparable injury to the plaintiff, both financial and emotional, his dreams being shattered and his desire to make and release a magnum opus.

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Court records submissions made by Sankhla that the defendants are committing heights of piracy which would result in complete evisceration in plaintiff's right, emanating from the literary auction agreement of 2009.

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Court record's Sankhla submission that delay in approaching court was unavoidable and that defendants had "led plaintiff down the garden path" on the aspect of film shooting.

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Court notes Sethi's submission for defendants that cause of action, as per plaint, went as far back as October 2019 and that Sankhla has only drawn the attention of Court to one side of the story.

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Court refers to the communication dated 11 Oct 2019 by defendants denying plaintiff's claims to the film rights, records Sethi's submission also on the aspect of there being an agreement between Plaintiff and Particle Media (defendant's co.)

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Court records submissions by Sethi there was a settlement agreement in 2014 where Rs 53 lakhs was paid consequent to which Plaintiff 2 waived all rights against Particle Media qua the "White Tiger" & present project. Court records submission that this was suppressed by plaintiffs

Court records submission by Sethi that therefore there is no reason why the suit is filed less than 24 hours before the release of #WhiteTiger (on Netlfix).

#DelhiHighCourt

Court records submissions by defendants that distinction drawn by Sankhla between theatre and OTT platforms is divorced from reality and that OTT releases also involve huge finances and goodwill which cannot be compromised.

@netflix

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Court records Sankhla's rejoinder submissions after defendant's submissions.

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Court's Order: 1. The plaintiffs were aware of the possibility of the subject film being released on Netflix at least as far back as Oct 2019....

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Court: There is no material on record to justify the plaintiff's approaching this court less than 24 hours prior to release seeking stay

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Court: It is no answer to the delay that owing to COVID that plaintiffs were under impression that no shooting would take place or that film would not be released.

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Nor can it be their stand, in wake of the legal notice. that plaintiffs expected due diligence on the part of any person making the film on "White Tiger" and to be informed in advance prior thereto - Court says.

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It is settled that any party approaching court at the end hour, seeking interlocutory indirection against the release of cinematographic film, is disentitled to any such relief- Court says.

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2. Paras 38-34 of plaint... clearly indicate prima facie that defendant 1 was not stranger while progressing film "White Tiger". There is reference to agreements between Defendant 1 and the company of Plaintiff 2. None of these documents is on record - Court

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... there is more to the case than meets the eye. Without having the aforesaid documents and chance to peruse.. this cannot court cannot come at prima facie finding that defendants have infringed the copyright of plaintiffs.

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It is not possible on the material of record to come to conclusion by producing or releasing the film, that defendants have indulged in illegal copyright infringement - Court

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3. Court says there are considerable financial ramifications on both sides. The release of a film is merely the culmination of protracted exercise including production, promotion, publicity.

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I am prima facie, inclined to agree with Sethi that if the release of the film is stayed, it would result in irreparable consequences for the defendants: Court adds.

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Plaintiff 1 is admittedly not the original creator of "White Tiger", he has been assigned the right to film the said literary work under a literary auction agreement dated March 4, 2009... : Court

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#Breaking: #DelhiHighCourt declines to stay release of #WhiteTiger slated for @netflix release at midnight.

Court, however, asks defendants to keep detailed accounts of earnings from the film, in case the plaintiffs later succeed in their suit against the defendant-filmmakers.

Even if the film is released and plaintiffs ultimately succeed in the suit, it would be possible to recompensate them monetarily even for emotional trauma, which, acc to Sankhla, Plaintiff 1 would undergo as a result of his not being able to be the first to film #WhiteTiger:Court

On a holistic consideration of the facts, especially as plaintiffs have chosen to move court less than 24 hours of the release of the subject film, plaintiffs have not been able to make out a case for grant of ad-interim injunction staying release of the film: Court

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Having said that, defendants, even while permitted to release the film as scheduled are directed to keep detailed accounts of earnings made from film so that at a later stage, if the plaintiff succeeds, Court can consider monetary compensation: Court

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Hearing is over.

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[BREAKING] Delhi High Court refuses to stay release of The White Tiger on Netflix

Read FULL STORY on the late evening hearing that happened in Delhi High Court

@priyankachopra @RajkummarRao @NetflixIndia

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