Inability To Prove Exact Quantum Of Loss Does Not Bar Award Of Damages Where Loss Is Established: Bombay High Court In "Nehle Pe Dehla" Video Copyrights Case
The Producer who assigned same film's video rights twice while concealing competing claim held liable for Rs. 1.66 crore compensatory and Rs. 25 lakh punitive damages.
The Bombay High Court has held that where a copyright breach is established but exact quantification of loss is difficult, the inability to prove the exact quantum of loss does not bar an award of damages, permitting courts to adopt a reasonable, "rough and ready" method of assessment rather than deny relief altogether.
Applying this principle, the Court held a film producer liable for misrepresentation and cheating for having assigned video copyrights in the feature film "Nehle Pe Dehla" to two different parties while representing to the first assignee that any earlier competing assignment stood cancelled, awarding punitive damages of Rs. 25 lakh in addition to compensatory damages of over Rs. 1.66 crore for what the Court characterised as commercial dishonesty.
A Single Judge Bench of Justice Arif S. Doctor observed, “…just because in a given case the Plaintiff is unable to prove the precise quantum of loss or damages with exactitude, that would not, in an appropriate case, preclude an award of damages where the fact of loss is established and the available evidence furnishes a reasonable basis for the assessment of damages”.
Advocate Rashmin Khandekar appeared for the plaintiff and Advocate Amit Dubey appeared for the defendant.
In 2005, Dhariwal Films assigned video rights in "Nehle Pe Dehla" to Ultra Distributors for eight years for a consideration of Rs. 42,51,000, of which Ultra paid Rs. 10,01,000 upfront, after Dhariwal represented that an earlier 2002 assignment of the same rights to Showman Export had been cancelled.
Dhariwal, however, never delivered Digibeta Master tapes of exploitable quality to Ultra and instead allowed a second claimant, engaged in VCD/DVD distribution, to exploit the very same rights, based on a chain of assignments traced through Showman dated May and August 2002. Ultra sued for a declaration that its assignment was valid and the rival's void, along with a refund and damages; the rival claimant filed a separate suit asserting its own exclusive title, which was tagged with Ultra's suit for joint trial.
Nine issues were framed in 2013, including the validity of Ultra's assignment, whether Dhariwal had delivered exploitable-quality masters, and whether the rival distributor held a prior and superior title. Evidence was led over several years, with Ultra examining two witnesses and the rival distributor examining one; Dhariwal neither entered the witness box nor led any evidence. During the pendency of the suit, the rival distributor's own competing suit was dismissed after the Court noted that the eight-year term under its claimed assignment had already expired, leaving nothing surviving for adjudication in that proceeding.
The Court found that Dhariwal had, at different points, taken irreconcilably contradictory positions, affirming Ultra's rights in pleadings before the Court in one proceeding, questioning the rival distributor's title on oath in an affidavit, and later executing Consent Terms with Ultra expressly confirming its assignment as "binding, valid and subsisting," while simultaneously supporting the rival distributor's competing claim in the present proceedings.
On non-delivery of usable master tapes, the Court held that Dhariwal's failure to specifically traverse Ultra's pleading on this point in its written statement amounted to a deemed admission, relying on Thangam v. Navamani Ammal on the requirement of specific denial under Order VIII Rules 3 and 5 CPC. On damages, the Court accepted the Consent Terms' figure of Rs. 82,51,000 as Dhariwal's own admitted valuation of the rights, and, after deducting the balance consideration still payable by Ultra, arrived at "expectation damages" of Rs. 50,01,000, adding sums proved towards publicity expenditure to reach the total compensatory award.
Cause Title: Ultra Distributors Pvt. Ltd. v. M/s. Dhariwal Films Pvt. Ltd. and 2 Ors (Neutral Citation: 2026:BHC-OS:19463)
Appearances:
Plaintiff: Rashmin Khandekar, Pranav Nair, Jyoti Ghag and Shailesh Prajapati, instructed by Dua Associates, Advocates.
Defendant: Amit Dubey, Abdullah Shaikh, Ashok M. Saraogi, Ashok Singh, Himanshu Choudhary, Advocates.