Vipul Ganda is an Independent Litigation Counsel with over 14 years of experience and a proven track record in Litigation and Dispute Resolution.
Vasundhara Prakash Versus Half Baked Beans Literature Pvt. Ltd. and Ors.
Court / Forum : Delhi High Court Citation : CM (M) 223/2019 Coram : Justice Pratibha M. Singh Subject : Liability of Intermediary Date of Decision : 2020-02-19
The Plaintiff and Defendant No.1 had entered into a publishing agreement dated December 4, 2017. After the book was written and finalised, disputes arose between the Plaintiff and Defendant No.1 as various defects which had been pointed out by the Plaintiff had not been addressed by Defendant No.1. On April 11, 2018, the Plaintiff revoked her authorization to Defendant No.1 to publish the book.
On April 11, 2018, an email was addressed by the Plaintiff to amazon.co.in Amazon Seller Services Pvt. Ltd. (“ASSPL”) stating that a copy of the book was found listed on the platform and calling upon ASSPL not to deal in or list the book. The said email was replied to by ASSPL on April 12, 2018 assuring the Plaintiff that the book would be removed from the website. Plaintiff alleged that despite the said assurance being given, the book was not removed, leading to the filing of the suit for infringement in May 2018.
The ASSPL contended that it had already deleted the listing from its portal and since it is only an intermediary, deletion from the array of parties was also sought by means of an application under Order I Rule 10 of Code of Civil Procedure, 1908 (“CPC”).
Plaintiff submitted that in the meantime, the book was converted into digital form and was made available on global platforms i.e., www.amazon.com and www.amazon.uk. In view of this, the Plaintiff moved an application under Order VI Rule 17 of CPC for amending the plaint as well as an application under Order I Rule 10 of CPC for impleadment of Amazon.com, Inc. and Amazon EU SARL i.e., the entities which were making the said book available in digital form, as Defendants. Plaintiff also alleged that ASSPL had violated the Information Technology (Intermediaries guidelines) Rules, 2011 as it failed to take down listing despite assurance.
ASSPL contended that e-format of the book was listed on it's website by a third party.it and that it is an independent legal entity and is not involved in the day to day activities of Amazon.com, Inc and Amazon EU SARL.
The trial court order dated January 3, 2019, ASSPL's application under Order I Rule 10 for deletion from the array of parties was taken up and allowed on the ground that though the Plaintiff had placed on record some screenshots to allege that the book was being sold through www.amazon.com and www.amazon.uk, there were no allegations in the Plaintiff's application under Order I Rule 10 that the book had been made available on ASSPL's e-portal.
Aggrieved by the said order, the Petitioner has filed the present petition.
Whether it was right for the trial court to exonerate the intermediary without a detailed examination?
The Hon'ble High Court observed that mere statement by ASSPL that it did not make the digital version of the book available to its global platforms cannot be straight away accepted. The fact that the digital version of the book was made available on the Kindle platform shows that a deeper enquiry would be required.
It held that it was extremely early in the proceedings for the trial court to conclude that the two global platforms being distinct and separate legal entities, ASSPL cannot be held liable for their day to day functions and would therefore not be required to continue appearing in the matter.
Accordingly, the Hon'ble High Court remanded back the matter to the trial court and directed it to adjudicate the Order I Rule 10 application afresh along with application under Order VI Rule 17 of CPC.
Vipul Ganda is a Delhi based Advocate practicing largely at the Delhi High Court. His practice focus is Dispute Resolution and Litigation and his practice areas include Arbitration, Commercial, Civil, Constitutional, Corporate and Criminal Litigation.