Bentley Systems Inc & Anr vs Mr Thangavelu Arivuraja & Anr on 7 November, 2024

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Delhi High Court - Orders

Bentley Systems Inc & Anr vs Mr Thangavelu Arivuraja & Anr on 7 November, 2024

Bench: Amit Bansal

                                    $~37
                                    *           IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +           CS(COMM) 984/2024 with I.A. 44322-44328/2024
                                                BENTLEY SYSTEMS INC & ANR.             .....Plaintiffs
                                                             Through: Mr. Pravin Anand, Ms. Imon Roy,
                                                                      Ms. Shreya Shukla and Ms. Vareesha
                                                                      Irfan, Advocates

                                                                                      versus

                                                MR THANGAVELU ARIVURAJA & ANR.                                             .....Defendants
                                                            Through:

                                                CORAM:
                                                HON'BLE MR. JUSTICE AMIT BANSAL
                                                                                      ORDER

% 07.11.2024 I.A. 44325/2024 (Exemption from filing original, certified copies, clearer copies, translated copies, left side margins, electronic documents)

1. Allowed, subject to the plaintiff filing legible copies of the annexures within four weeks from today.

2. The application stands disposed of.

I.A. 44324/2024_[O-XI R-1(4) of the Commercial Courts Act]

3. The present application has been filed on behalf of the plaintiffs seeking leave to file additional documents under the Commercial Courts Act, 2015.

4. The plaintiffs are permitted to file additional documents in accordance with the provisions of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018.

5. Accordingly, the application is disposed of.

CS(COMM) 984/2024 Page 1 of 10

This is a digitally signed order.

6. The plaintiffs seek urgent interim relief against pirated software and for this purpose, an ex-parte appointment of Local Commissioner is also sought to confiscate the goods. It is submitted that there is a probability that the defendants may remove the pirated software programmes if the defendants are given advance service of the plaint paper book.

7. Therefore, in the peculiar facts and circumstances of this case, exemption from effecting advance service upon the defendants is granted.

8. The application is disposed of.

I.A. 44327/2024 (u/s 12A of Commercial Courts Act)

9. As the present suit contemplates urgent interim relief, in light of the judgment of the Supreme Court in Yamini Manohar v. T.K.D. Krithi, 2023 SCC Online SC 1382, exemption from the requirement of pre-institution mediation is granted.

10. The application stands disposed of.

I.A. 44328/2024 (extension from filing court fee)

11. Counsel for the plaintiffs submits that Court fee is already paid.

12. The statement of the counsel is taken on record.

13. Application stands disposed of accordingly.

CS(COMM) 984/2024

14. Let the plaint be registered as a suit.

15. Issue summons.

16. Summons be issued to the defendants through all modes. The summons shall state that the written statement(s) shall be filed by the defendants within thirty days from the date of the receipt of summons. Along with the written statement(s), the defendants shall also file affidavit CS(COMM) 984/2024 Page 2 of 10 This is a digitally signed order.

17. Liberty is given to the plaintiffs to file replication(s), if any, within thirty days from the receipt of the written statement(s). Along with the replication(s) filed by the plaintiffs, affidavit of admission/denial of the documents of the defendants be filed by the plaintiffs.

18. The parties shall file all original documents in support of their respective claims along with their respective pleadings. In case parties are placing reliance on a document, which is not in their power and possession, its detail and source shall be mentioned in the list of reliance, which shall also be filed with the pleadings.

19. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

20. List before the Joint Registrar on 16th January, 2025 for completion of service and pleadings.

21. List before the Court on 7th March, 2025.

I.A. 44322/2024 (under Order XXXIX Rule 1 & 2 of CPC)

22. The present suit has been filed seeking relief of permanent injunction restraining the defendants from infringing the copyright of the plaintiffs along with other ancillary reliefs.

23. It has been averred in the plaint that the plaintiff no.1 is the owner of the copyright in its software programme titled 'Microstation PowerDraft'. The software programmes and all user instruction manuals in respect thereof are "literary works" capable of protection under the Copyright Act, 1957. The same have been created/developed and written for the plaintiffs by their employees, during the course of their employment with the plaintiffs. The CS(COMM) 984/2024 Page 3 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53 plaintiff no.1 is the "first owner" of the copyright as defined under the Copyright Act, 1957 in respect of the aforesaid software programme. Detailed description of the aforesaid software programme and its uses has been provided in paragraph 8 of the plaint. Plaintiff no.2 is the wholly owned subsidiary of the plaintiff no.l.

24. It has further been averred in the plaint that the plaintiff no.1's software programs are licensed through internet delivery, during which process the customer agrees to the terms of an End-User License Agreement prior to software installation for the requisite number of computers on which the software programme has been loaded/installed for concurrent use at its premises. The plaintiffs maintain an extensive and frequently updated database of all its licensees. The defendants do not have any of such licenses of the plaintiff no.1's software programs as per the database of the plaintiffs.

25. The case set up by the plaintiffs is that sometime in August 2024 the plaintiffs received information about the defendants rampantly using pirated/unauthorized versions of the various software programmes of the plaintiff no.1, including 'Microstation', on their computer systems for business purposes. Plaintiffs' enquiry through the 'phone home' technology revealed that the defendant no.2 company had been using unauthorised version of the plaintiffs' software program on at least 22 computer systems against which 595 infringement hits have been generated. The phone home tool has specifically captured the usernames such as "mape01", "Mape- Workstation1", "MAPe-PGY003", "mape-PGY00l", which is the name of the defendant no. 2 company.

26. Pursuant thereto, the plaintiffs availed the services of an independent investigator, namely Mr. Chandra Bhan Singh, who conducted telephonic CS(COMM) 984/2024 Page 4 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53 investigation of two employees of the defendant no.2 on 7th October 2024, who informed the plaintiffs' Investigator that 12-25 people are using the plaintiffs' Microstation software program at the defendant no.2 company.

27. Thereafter, the plaintiffs' Investigator, through his local operative in Bangalore conducted a physical investigation of the premises which resulted in the confirmation that the defendant no.2 is operating from two offices in Chennai, located at "No. 41, Rajeswari Street, Santosh Nagar, Kandanchavadi, Chennai-600096" and "99, Rajiv Gandhi Salai, Industrial Estate, Perugundi, Chennai"

28. Based on the investigation conducted by the independent investigator and the findings of the phone-home technology, the defendants are knowingly using pirated/unauthorised versions of the software programmes of the plaintiff no.1, 'Microstation' on at least 25 computer systems. Hence, a prima facie case of infringement has been made out on behalf of the plaintiffs.

29. Balance of convenience is also in favour of the plaintiffs and against the defendants. Irreparable harm would be caused not only to the plaintiffs but also to the public if an ex parte ad interim injunction as prayed for is not granted in favour of the plaintiffs.

30. Consequently, till the next date of hearing, the defendants, their agents, franchisees, servants and all others acting for and on their behalf, are restrained from directly or indirectly copying, reproducing, storing, installing and/or using and/or pirated/unlicensed/unauthorised versions of software program(s) of the plaintiff no.1 and/or committing unauthorised usage of, including but not limited to, MicroStation PowerDraft and its various versions or any other software programs developed by the plaintiffs.

CS(COMM) 984/2024 Page 5 of 10

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53

31. Further, the defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf at the defendants' premises, are restrained from directly or indirectly formatting the computer systems and/or erasing any data, log files, installations, etc. pertaining to assisting others to infringe the copyrights of the plaintiffs subsisting in their software programs and software related documentation including MicroStation PowerDraft software program and their various versions or any other software programs developed by the plaintiffs.

32. Issue Notice.

33. Notice be issued to the defendants through all permissible modes.

34. Reply(ies) be filed within four (4) weeks.

35. Rejoinder(s) thereto, if any, be filed within two (2) weeks thereafter.

36. In view of the fact that the plaintiffs have sought appointment of Local Commissioners to seize the infringing goods, the very purpose of grant of ex parte ad interim injunction would be defeated if the defendants are given notices contemplated in Order XXXIX Rule 3 of Code of Civil Procedure, 1908 (hereinafter "CPC") prior to the execution of the commission. Hence, it is directed that the plaintiffs shall serve notices under Order XXXIX Rule 3 of CPC at the time of execution of the commission which shall not be later than two (2) weeks from today.

37. List before the Joint Registrar on 16th January, 2025 for completion of service and pleadings.

38. List before the Court on 7th March, 2025.

I.A. No. 44323/2024 (O - XXVI R-4 & 9 of the CPC)

39. The present application has been filed under Order XXVI Rule 9 of the CPC seeking appointment of two Local Commissioners to, inter alia, CS(COMM) 984/2024 Page 6 of 10 This is a digitally signed order.

40. In view of what is stated above, the plaintiffs have made out a case for appointment of Local Commissioners.

41. The following persons are appointed as Local Commissioners at the cost of the plaintiffs and shall visit the premises of the defendants in the following manner:

                                                       Local Commissioner                                                  Defendants' premises

                                          Ms Deeksha Khurana                                                      No.      41,     Rajeswari    Street,

                                          Mobile No. +91-9811911222                                               Santosh                      Nagar,
                                                                                                                  Kandanchavadi,             Chennai-
                                                                                                                  600096.

                                                       Local Commissioner                                                  Defendants' premises

                                          Ms Ananya Sikri                                                        99,       Rajiv      Gandhi      Salai,
                                          Mobile No. +91-9811175375                                              Industrial        Estate,   Perugundi,
                                                                                                                 Chennai.

42. The following directions are passed in this regard:

a. The Local Commissioners, along with a representative of the plaintiffs, its counsel as well as two technical experts as identified by the plaintiffs., shall be permitted to enter upon the premises of the defendants mentioned above or any other location/premises that may be identified during the course of commission, in order to conduct the search and seizure.

CS(COMM) 984/2024 Page 7 of 10

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53 b. The Local Commissioners shall inspect the Hard Disks of the computers, compact discs and/or other storage/replicating media, with the help of Technical Experts of the plaintiffs and determine if the aforesaid storage/replicating media contain pirated/counterfeit/unlicensed versions of the plaintiffs' software programmes.

c. The evidence of any of the plaintiffs' programmes which may be available on the defendants' system shall be copied on a hard drive and the computers shall be released back to the defendants, provided they give an undertaking to pay the license fee to the plaintiffs, as may be determined by this Court, upon entering appearance in the matter. The Local Commissioners shall get the said undertaking executed by the defendants.

d. The Local Commissioners with the help of the Technical Experts of the plaintiffs shall prepare audit reports/license summaries/inventories of the aforesaid storage/replicating media.

e. After seizing infringing material, the same shall be inventoried, sealed and signed by the Local Commissioners, in the presence of the parties, and released on superdari to the defendants on their undertaking to produce the same as and when further directions are issued in this regard.

f. The defendants and their representatives are directed to provide full assistance to the Local Commissioners for executing the present commission including granting access to the server CS(COMM) 984/2024 Page 8 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53 room and providing screenshots of the deployments of the plaintiffs' software programs in digital as well as printed form. g. If the computers and/or other storage/replicating media of the defendants are password protected, the defendants shall make accessible the said password(s) so as to enable the Local Commissioners to execute the commission.

h. In case, the aforesaid premises of the defendants or any part thereof are found locked, the Local Commissioners are permitted to break open the locks and doors for execution of the commission.

i. To ensure an unhindered and effective resolution of this order, the SHO of the local police station having jurisdiction of the aforesaid premises and the DCP concerned are directed to render the necessary protection and assistance to the Local Commissioners, if and when sought.

j. The Local Commissioners shall have the liberty to take photographs and/or videos of the proceedings of the commission, if it is deemed appropriate.

k. After the execution of the commission, the defendants are free to approach the Court within a period of two weeks, if they intend to obtain the license of the plaintiffs' software. The defendants are also free to negotiate with the plaintiffs and its representatives for the purpose of obtaining the licenses.

43. The Local Commissioners shall file their Reports within two (2) weeks of executing the commission, along with photographs taken and photocopies of the books of account and stock and the inventory procured CS(COMM) 984/2024 Page 9 of 10 This is a digitally signed order.

44. The fees of the Local Commissioners, to be borne by the plaintiffs, is fixed at Rs.1,50,000/- each. The plaintiffs shall also bear expenses for travel and lodging of the Local Commissioners and other miscellaneous out-of- pocket expenses for the execution of the commission.

45. The application stands disposed of in the above terms.

46. The order passed today shall not be uploaded for a period of two (2) weeks from today.

47. Dasti.

AMIT BANSAL, J NOVEMBER 7, 2024/PB CS(COMM) 984/2024 Page 10 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:29:53

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Delhi High Court - Orders