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It was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years
Argument
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In the course of his business the 2nd respondent has developed contacts and connections with important and renowned personalities,artists,technicians etc.in the film industry
Argument
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In the year 1967,the 2nd respondent's wife Mrs
Argument
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Sunanda S.Oberoi started the proprietary business of advertising agency in the name and style of Art Commercial and the 2nd respondent used to work in various capacities for the said firm
Argument
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In the year 1983,the said proprietary firm was converted into a private limited company which is the 1st respondent in the present suit and the 2nd respondent constituted respondent Nos.3 and 4 as his proprietary firm
Argument
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About 18 years ago before filing of the suit,the respondents came into contact with the petitioners initially as clients in connection with the job of advertisement of their products on All India Radio,theatre and films and later,on television
Argument
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These ad-films and jingles fetched handsome returns for the petitioners and boosted their sales beyond their own expectations
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In course of time,the 2nd respondent and partners of the petitioners especially G.K.Pendharkar came very close to each other and developed very intimate relations
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Either at the end of 1983 or early part of 1984,the 5th respondent through the said Doorsarshan decided to introduce the production of films or serials especially for exhibitions on TV instead of exhibiting/telecasting films produced by the professional film producers on payment of exorbitant royalty to them,partly as an economy measure and partly to provide avenues to and exposure new talents
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The 5th respondent thereafter decided to entertain/welcome and/or encourage the proposals from the private producers to produce such serials or films at their own cost and responsibility and under the said scheme the advertisers desirous of linking up their advertisements with such films or serials were required to negotiate and settle directly with the producers of such films and/or serials,the royalty or consideration payable to such producers for linking up their advertisements and commercials with their film/serial and under the said scheme further,such advertisements were offered handsome concessions in the rates of advertisements for display of their ads on TV
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As against the regular rates/charge of Rs.3,24,000/-for display of advertisements on TV of such advertisers for 120 seconds per telecast,the relevant time,at the rate of Rs.35,000/-only for 120 seconds in addition to the royalty or consideration payable to the producers of such films or serials which invariably was far less than the difference between the usual rates and concession rates of advertisements
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The 2nd respondent undertook the preliminary project work on his own without loss of any time
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The 2nd respondent made extensive study and research and prepared a format of the proposed serial
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The said team of the 2nd respondent responded to his appeal and took great pains and put in hard work in the said project and presented to him an exclusive and ingenious format of the proposed serial
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The 2nd respondent then approached the 5th respondent through Doordarshan with his proposal to produce the said serial then proposed to be entitled "Mussibat Hai".After a number of meetings between the 2nd respondent and the concerned officers and the authorities of the respondents at Delhi in connection with the said proposal approved a pilot [i.e.the first episode as sample] on 19 September 1984 to produce a TV serial comprising 52 episodes subject of course to the 5th respondent discretion to discontinue the same if the same proved a flop before the expiry of the stipulated period
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The entire cost of the spade work and the cost of the title song was borne exclusively by the respondents and nothing was contributed by the petitioners in this regard
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The 5th respondent registered the respondent Nos.1 and 2 as the producers of the said serial
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After finalizing the proposal by the TV authorities,respondent No.2 asked the petitioners as to whether they were interested in the linking up their ads with the said serial
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Petitioners agreed to link up their ads with 26 episodes of the said serial
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The petitioners agreed to pay fixed amount to these respondents per episode for linking up their commercials with the said serial and not on the basis of the actual cost of production of each episode so that if the cost of production exceeded the said fixed amount the respondents had to bear the same
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In these circumstances,the respondents contended that by entering into the said agreement of sponsorship,neither the petitioners nor the respondents created nor did they ever intend to create any relationship of employer and employee and/or master and servant or principal and agent between the petitioners on the one hand and the respondents No.1 to 4 on the other
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Nor did the parties intend that the respondents should produce the said serial for the petitioners or at the instance of the petitioners and the respondents intended to embark on the production of the said serial on their own
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The petitioners by their letter dated 02 January 1987 turned down the respondents' demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial "Yeh Jo Hai Zindagi" may not be used by the respondents
Argument
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In the meanwhile,the respondents contended that M/s Brook Bond Ltd.who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price
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On these grounds,the respondents contended that the suit of the petitioners is misconceived,malicious and baseless and is liable to be dismissed
Argument
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The respondents contended that on no occasion the petitioners acted as a producer and even the contract was signed by the petitioners as an Advertiser and by the respondent No.1 as an approved agent
Argument
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The respondents strongly contended that the serial "Hum Log" was produced by the petitioners in collaboration with M/s Concept Advertisers
Argument
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The trial court raised as many as 12 issues and they are as follows: "1."Is it proved that this Court has no pecuniary jurisdiction to entertain and try this suit
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2.Do
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the plaintiffs prove that the T.V.serial entitled "Yeh Jo Hai Zindagi" was produced by the defendant Nos.1 to 4 as agents and (the said serial made by defendant Nos.1 to 4) in the course of their employment with the plaintiffs as alleged
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3.Do the plaintiffs prove that the entire serial rights including the excluding the exclusive right to use the title thereof,belong to the plaintiffs as alleged
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4.Are defendant Nos.1 to 4 entitled to deny the ownership of the plaintiffs of the Film
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Yeh Jo Hai Zindagi" in view of Exhibits a,B and E (colly) to the plaint
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5.Do
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the defendants prove that the plaintiffs are not the owners of the copyright of the TV serial/film,viz.,"Yeh Jo Hai Zindagi" ,within the meaning of S.17 of the Copyright Act
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6.Do
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the defendant Nos.1 to 4 prove that it was intended between the parties that copyrights in respect of the said film should vest exclusively with the defendants or that the right of ownership was waived by the plaintiffs
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7.Does
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the suit suffer from non-joinder of necessary parties
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8.Is
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the suit not maintainable against defendant No.5 for failure to give notice u/s 80 of CPC
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9.Are
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the plaintiffs entitled to the declaration sought
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10.Are
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the plaintiffs entitled to permanent injuction as prayed for
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11.To what relief,if any,are the plaintiffs entitled
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12.What order
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The trial court found that the petitioners have not been able to prove that the TV serial "Yeh Jo Hai Zindagi" was produced by defendants Nos.1 to 4 as agents in the course of their employment as the agent of the petitioners as contended in the suit
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The petitioners were also not able to prove that the entire serial rights including the exclusive right to use the title thereof belonged to the petitioners as alleged
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It was also held that the respondents Nos.1 to 4 are entitled to deny the ownership of the petitioners of the film "Yeh Jo Hai Zindagi in view of Exhibits A,B and E produced in the case
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It was also held that the respondents proved that the petitioners are not the owners of the copy right of the TV serial/film viz.,"Yeh Jo Hai Zindagi" within the meaning of S.17 of the Copy Right Act and it was intended between the parties that copy rights in respect of the said film should vest exclusively with the respondents or that the rights of ownership was waived by the petitioners
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After examining the oral and documentary evidence on record it is disclosed that prior to letter sent on 11 July 1984 the petitioners were acquainted even with the format of the suit serial,they did not have any connection with the suit serial till that date and relied upon the wording used therein to the effect that "you and Mr
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G.K.Pendharkar are requested to join Mr
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Oberoi and his creative team when the format of the proposed half and hour sponsored programme shall be presented to you
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That was the first occasion when the format was presented to the petitioners
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It was also on record that the Shri G.K.Pendharkar of the petitioners and respondent No.2 had long standing relations with each other and they had already done a lot of advertising works for the petitioners before the production of the suit serial
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Exhibit G-1 (which is Exhibit 27-A in the petitioners' compilation) is a letter written by Shri S.P.Agrawal,Controller of Programmes of Doordarshan to respondent No.1,M/s Art Commercia with reference to the format for the proposed serial of half and hour duration tentatively titled "Musibat Hai" serial sent to them on 13 July 1984.Since the letter was addressed to M/s Art Commercia in which the proposal was accepted for production of the serial and the first episode was to be sent for preview and approval which would be given only after seeing the recording of the first episode
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That letter had been addressed to respondent No.1,M/s Art Commercia
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The trial court felt that it was addressed not to the petitioners but to the respondents alone
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The trial court also relied on Exhibit C-1 which indicated that the respondents were submitting a format for the serial which was to be registered on behalf of the client M/s Vicco Laboratories
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The learned Judge of the trial court took the view that this letter nowhere mentioned that the respondents wanted to register their format on behalf of their producers which is consistent with the modern norms of advertising
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The trial court ultimately came to the conclusion that the spade work on the production of the suit serial had already started before 11 July 1984 and on that day for the first time film was presented to the petitioners
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It was,therefore,found that there was no copy right attached to any idea,but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on TV came to the mind of respondent No.2 but he had already started working on it in advance and forwarded it to Doordarshan for its approval
Ratio of the decision
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The trial court,after examining Exhibits C-1,E-1,F-1 P-1 found that the proposal was for 52 episodes and was accepted by the Doordarshan,while the case put forth on behalf of the appellants is that the original agreement was to have 27 episodes and having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes
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The evidence was found to be inconsistent with the theory put forth by the petitioners that they are producers of the suit serial and,if it were to hold otherwise,the agreement or arrangement with the respondents was only for 26 episodes,whereas the sponsorship was for 52 episodes
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The trial court examined in detail the letter dated 19 July 1984 (Exhibit F-1) written by Shri G.K.Pendharkar of the petitioners and concluded that averments made in the plaint stated that the original agreement was to have 27 episodes but having regard to the popularity of the serial programme the petitioners decided to increase the said serial to 52 episodes
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In one of the contracts (Exhibit H-1) the wording used is as under :- "Sponsorship of programme of 25 mts duration produced by sponsor entitled "Yeh Jo Hai Zindagi" including 2 mts free commercial time
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Relying upon this letter emphasis was laid on the words "produced by sponsors" .Whether two capacities "sponsor" and "producer" can co-exist in one and the same person or not has been examined and the trial court noted that the wording had been borrowed from the Tariff Card and Tariff Card also indicated what are the categories of the advertisers and rates thereof
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It is held that words "produced by sponsors" would not mean that the sponsors themselves are the producers of the said programmes,as is clear from the Tariff Card
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The trial court proceeded thereafter to examine the payments made in regard to production of the serial
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Thus it was found that the first 26 episodes the amount per episode paid by the petitioners was Rs.1,20,000/-and each bill contained the expression "service charges" which was stated by the appellants that the respondents acted as agents of the petitioners for production of suit serial
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On proper construction of the bills the trial court rejected the contention that these bills and payments as showing that they had borne the costs of production of the suit serial and,therefore,they are the producers
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Inasmuch as the respondents could not claim any amount at random,details regarding expenditure were included in the bills and therefore it is the sponsor's price for sponsoring the suit serial
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Strong reliance was placed upon certain circumstances,namely,that the format had been approved by the petitioners only on 11 July 1984 and PW-1 admitted that in view of the bill the entry claiming deduction made by the petitioners in their accounts in the financial year ending on 30 March 1984; that the amount was not to be paid for all 26 episodes or even thereafter in lump sum and the bill for 26 episodes enabled petitioners to claim deduction for the entire amount without actual payment in financial year 1983-84; that the entry made for the financial year 1983-84 was beneficial to the petitioners that there was no ceiling on advertising expenditure and it was introduced from 1 April 1984 onwards,the plaintiff did not produce the account books to show if the deduction in respect of the entire amount was claimed or not though they were repeatedly called upon to produce them
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The trial court was conscious enough not to enter into the controversy whether during the particular account year ending on 31 March 1984 the advertising expenditure was fully exempted from tax or that there was disallowance of 20 per cent on that point and the decision regarding income tax deductions is not necessary as there is enough other material to show that the said bill was ante-date
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The change in the title from 55th episode "for Vicco Laboratories" was introduced
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Their contention was that there was a protest from the petitioners and as a result thereof this change took place
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The 55th episode was telecast sometime at the end of November or beginning of December 1985 and thus there was a time gap of 7/8 months between the protest and the telecast of the 55th episode
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Therefore,it cannot be said that there is any communication between the same
Ratio of the decision
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The trial court also noticed that in respect of both the advertisements and also in respect of suit serial the petitioners paid to the respondent Nos.5 and 6 amount which was to be the maximum amount
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Thus the profits or loss was of the respondents and there is element of liability to render account was missing and thus there was no question of respondents being the agents of the petitioners within the meaning of S.182 of the Indian Contract Act
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The suit serial was produced by the respondents as agents of the petitioners was false
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The facts emerging in the case indicate that the petitioners had joined the production of the suit serial after some concrete beginning had been made like recording of the title song,the conceiving of the title and format of the suit serial,etc
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The trial court summed up the position that the two capacities "sponsor" and "producer" cannot co-exist in one and the same person
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If the documents are interpreted that the petitioners are the sponsors as well as the producers it would lead to absurd results
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Thus the trial court proceeded to uphold the contentions raised on behalf of the respondents to dismiss the suit
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On appeal,the High Court re-examined the matter and on examination of the pleadings,the contentions,put forth before the court,the evidence on record and the findings recorded by the trial court,concluded that the findings recorded by the trial court are proper
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In doing so,the High Court noticed that the admitted position in the pleadings and the oral evidence is that the petitioners agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had made firm commitment to Doordarshan to that effect and this circumstance militates against the respondents having undertaken the production at the behest or at the request of the petitioners
Facts
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The High Court observed that the petitioners had no knowledge of the Doordarshan scheme regarding the sponsored programme and linking of 2 minutes advertisement and agreed with the findings of the trial court that it is improbable for the respondents to have agreed to reduce its income in the form of commission and undertake the responsible job of production of the serial
Ruling by Lower Court
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It was stated that certain bills had been given to the petitioners to suit their convenience in tax matters and there was no such bill submitted to the petitioners by the respondents when the petitioner had agreed to extend the sponsorship from episodes Nos.27 to 52 and noticed the nature of the system of accounting maintained by them and held that the petitioners had got deductions in respect of the entire amount of the bill in the year which ended on 31 March 1984
Ruling by Lower Court
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The High Court also noticed the circumstance of respondent No.2's name appearing as 'producer' in the titles of the suit serial and the petitioners did not do anything by way of protest or other objection or take steps to withhold payment of the respondents which in the normal course would have been done and,therefore,the explanation now sought to be offered by the petitioners in the form of a written protest was devoid of any substance
Facts
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The explanation given by the petitioners that they were busy in the shootings did not carry much weight with the High Court
Facts
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The High Court also examined the scope of S.17 of the Copyright Act and the ingredients thereof not having been established the High Court held that no claim could be based on the same and thus agreed with the findings recorded by the trial court and dismissed the appeal
Facts
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In this special leave petition u/art.136 of the Constitution,the contentions raised before the High Court are reiterated particularly as to the effect of S.17 of the Copyright Act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the TV programme 'Yeh Jo Hai Zindagi
Ratio of the decision
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The learned counsel for the petitioners strongly relied upon the following documents: "1.The cost estimate
Argument
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2.The bills of cost of production
Argument
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3.Letters dated 14 December 1984 and 15 November 1985
Argument
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4.Contracts with Doordarshan
Argument
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5.Contractd with Esquire Distributing & Servicing Pvt.Ltd
Argument
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We have carefully considered the contentions urged on behalf of the petitioners
Ratio of the decision
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