Delhi High Court
Symantec Software Solutions vs R Modi & Ors. on 1 August, 2016
Bench: Pradeep Nandrajog, Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 01, 2016
+ FAO (OS) 171/2015
SYMANTEC SOFTWARE SOLUTIONS ..... Appellant
Represented by: Mr.Sudhir Chandra, Senior Advocate
instructed by Mr.Pravin Anand,
Ms.Kruttika Vijay and Mr.Ravin
Galgotia, Advocates
versus
R MODI & ORS ..... Respondents
Represented by: Mr.Chander M.Lall, Advocate with
Ms.Nancy Roy, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The appellants are the plaintiffs. In the plaint it is pleaded that the plaintiffs have developed various software programmes and therefore the proprietary right in the software programmes vest with the plaintiffs. In short, the plaintiffs claim proprietary interest in computer programmes as owners of the copyright in the programmes. It is pleaded that one strategy adopted by pirates is to purchase a computer software but install the same in computer hardware in excess of the license number. The appellants plead that they received information that the defendants are resorting to piracy. To verify the veracity of the information one Anil Nayyar was engaged by the plaintiffs as an investigator who contacted one Ms.Rupali Modi in the office FAO (OS) No.171/2015 Page 1 of 7 of elogic Solutions India Pvt. Ltd. The investigator told Rupali Modi that he represented an overseas client who was desirous of identifying a company which could develop and provide architectural drawing. Rupali Modi answered in the affirmative. The investigator reached the office of elogic Solutions India Pvt. Ltd., carrying with him an audio recording device. Ms.Rupali Modi took the investigator around her office in the premises of the company and introduced him to one Praveen who claimed to be an IT Administrator. The investigator was informed that elogic Solutions India Pvt. Ltd. deals in many areas including architectural and engineering services. It had employed 80 persons and was using approximately 70 computer systems for its businesses and was using the software programmes copyright whereof was with the plaintiffs. On checking their database, evinced that the computer programmes of plaintiff No.1, 2 and 5 used by elogic Solutions India Pvt. Ltd. were unlicensed and regarding plaintiff No.3 and 4, the software was installed on computers in excess of the license number. Injunction and damages have been prayed for.
2. The plaint has been verified by one Achuthan Sreekumar as the constituted attorney of plaintiff No.1 and Anand Banerjee as the constituted attorney of plaintiffs Nos.2 to 5. Both have verified the pleadings.
3. In the written statement filed, inter-alia it is pleaded that the plaintiffs are guilty of illegal entrapment. The authority of Achuthan Sreekumar and Anand Banerjee to institute the plaint on behalf of the plaintiffs has been denied.
4. Of the various issues settled, two issues need to be noted : whether the plaintiffs are guilty of entrapment and whether the suit has been instituted by a competent and a duly authorized person.
FAO (OS) No.171/2015 Page 2 of 75. After the plaintiffs led evidence, the defendants proceeded to examine their witnesses and a controversy arose when the defendants obtained summons from the Registry of the Court to examine Achuthan Sreekumar, one Ms.Rohini Boez, one Inzamuni, Keshav S.Dhakad, Anil Nayyar and Karishma Gandhi as witnesses, notwithstanding their names were not included in the list of witnesses which were filed by the defendants after the issues were settled in terms of Order XVI Rule 1 of the Code of Civil Procedure.
6. The plaintiffs filed an application registered as IA No.22920/2012 praying that the summons issued to aforesaid witnesses be recalled. The said application has been disposed of by the learned Single Judge vide impugned order dated January 27, 2015. Of the seven persons against whom summons were obtained to appear as witnesses of the defendants, the learned Single Judge has permitted only Anil Nayyar, Achuthan Sreekumar and Rohini Boez to be summoned as witnesses.
7. The plaintiffs have come up in appeal pleading that trial in the suit is lingering on. It is pleaded that as per law, once a list of witnesses has been filed, if an additional witness has to be summoned an application has to be filed giving reasons why the additional witness is being examined. Only when the Court permits can an additional witness be summoned. That apart, it is pleaded that no case is made out to permit the defendants to summon said three persons as witnesses.
8. As regards the first plea urged, technically the plaintiffs may be correct in pleading that the defendants could not ask the Registry to issue summons to a person not named in the list of witnesses filed by the defendants in compliance with Order XVI Rule 1 of the Code of Civil FAO (OS) No.171/2015 Page 3 of 7 Procedure. But concededly, any party can move an application praying to the Court to be permitted to summon additional witnesses and upon giving good justification would be entitled to obtain a favourable order from the Court. We find that exercise has been undertaken by the parties when plaintiffs filed IA No.2292/2012 praying that the summons obtained by the defendants for the seven named witnesses, being additional witnesses, should be cancelled. The defendants in their reply to the said interim application gave justification to examine the seven additional witnesses and the learned Single Judge went into the justification put forward by the defendants to summon said seven persons as additional witnesses. As noted above, permission has been declined to summon for witnesses and the summons obtained by the defendants from the Registry have been revoked. Only three persons have been admitted to be examined as witnesses.
9. The learned Single Judge has given the following reasons:-
(i) Qua Anil Nayyar the learned Single Judge has noted that the plaintiff themselves volunteered to produce him as a witness and thus has concluded that no further discussion was warranted.
(ii) Regarding Achuthan Sreekumar the learned Single Judge has held that claiming to be the constituted attorney of plaintiff No.1 to institute the suit, since the plaintiffs did not examine him, his testimony would be relevant to settle the issue, onus whereof was placed on the defendants regarding whether the suit had been instituted by a duly authorized person.
The learned Single Judge has therefore opined that the defendants would be entitled to summon him as a witness.
(iii) Regarding Rohini Boez the learned Single Judge has given two reasons to permit the defendants to summon her as a witness. Firstly the FAO (OS) No.171/2015 Page 4 of 7 plaintiffs themselves had cited her as a witness and secondly Gaurav Shankar PW-2 examined by the plaintiffs had deposed that it was she who had received the information regarding use of the unlicensed pirated software.
10. In view of the fact that the plaintiffs themselves agreed to examine Anil Nayyar as a witness, during arguments in the appeal, learned senior counsel for the appellant did not challenge the impugned order in so far it permitted Anil Nayyar to be examined as a witness.
11. Questioning the impugned order in so far it permitted defendants to examine Achuthan Sreekumar, learned senior counsel urged that there was no necessity to examine him because the plaintiffs' witness Ms.Tanu Arora who has authorized Achuthan Sreekumar to institute the suit had been examined and had been cross-examined. She proved the authorization in her favour including the power to further authorize another person to sue on behalf of plaintiff No.1. Learned senior counsel read extracts of the testimony of Tanu Arora on said aspect of the matter. Regarding Rohini Boez, learned senior counsel argued that Gaurav Shankar PW-2 who was the licensed and compliance manager of appellant No.3 deposed as to how appellant No.3 received information of infringement. Learned senior counsel referred to the testimony of this witness to bring home that the witness gave details as to how information was received and coalesced regarding piracy. It is urged that it would be irrelevant to discuss how Rohini Boez received the information concerning piracy.
12. Now, if Achuthan Sreekumar has instituted the plaint and verified the pleadings for and on behalf of plaintiff No.1, notwithstanding Tanu Arora having been examined by the plaintiffs, who gave the authorization to FAO (OS) No.171/2015 Page 5 of 7 Achuthan Sreekumar, he would be a relevant witness keeping in view the onus of the issue being cast upon the defendants, thereby permitting the defendants to summon him as the witness. He has not only signed the plaint but has even verified the same and the basis of the verification is the knowledge of Achuthan Sreekumar to the contents of paras 1 to 49 of the plaint. It is trite that a knowledge of a person lies in the brain and the veracity of the knowledge can be established by examining the said person alone and no one else.
13. As regards Rohini Boez, notwithstanding the testimony of Gaurav Shankar and his cross-examination, we find that she had been cited as a witness by the plaintiffs and thus this would be a good reason for the defendants not to include her name in the original lists of witnesses filed. Upon the plaintiffs giving her up as a witness, the defendants became entitled to summon her as an additional witness. The justification to examine her has been given by the learned Single Judge, and we adopt the same.
14. In the decision reported as 1980 (4) SCC 8 Shah Babulal Khimji Vs. Jayaben D.Kania & Ors. the Supreme Court had a word of advice given to the Appellate Court concerning interim orders passed by learned Single Judges on the original side of such High Courts which were vested with original jurisdiction. The same are in sub-para (1) of para 119. The same reads as under:-
"(1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed FAO (OS) No.171/2015 Page 6 of 7 by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex-facie legally erroneous or causes grave and substantial injustice."
15. It simply means, and the use of the words unless it is ex-facie legally erroneous or causes grave and substantial injustice, brings out that a discretionary order passed by a learned Single Judge of this Court on the original side who has a vast experience of various branches of law cannot lightly be interfered with in a matter of an order based on discretion and the challenge thereto must rise to the level of it being ex-facie shown that the order is legally erroneous or causes grave and substantial injustice.
16. The appeal is accordingly dismissed but without any order as to costs. CM Nos.6462-63/2015 Dismissed as infructuous.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE AUGUST 01, 2016 mamta FAO (OS) No.171/2015 Page 7 of 7