Bombay High Court
Darshan Jain And Another vs Piyush Surana on 31 January, 2019
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
Nitin 1 / 7 901-NMCD-2474-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION NO. 2474 OF 2018
IN
COMIP NO. 1490 OF 2018
Darshan Jain and Anr. ... Plaintiffs
Versus
Piyush Surana ... Defendant
Mr.Vinod Bhagat a/w. Ms.Laher Shah I/b.G.S.Hegde and V.A.Bhagat for the
Plaintiffs.
Mr.Firoz Bharucha I/b. Mr.P.P.Fouzdar for the Defendant.
Mr.Aditya Pimple for the Court Receiver.
Mr.Shetty - Court Receiver, present.
Mr.Piyush Surana - Defendant, present in person.
CORAM : S.J. KATHAWALLA, J.
DATED : 31ST JANUARY,2019 P.C.:
1. The Plaintiffs - Mr. Darshan Jain and Indrakumar Jain filed the above Suit against the Defendant - Piyush Surana inter alia seeking reliefs on the ground that the Defendant is guilty of infringement of the Plaintiffs' subsisting copyright in the original artistic works depicted in its digital textile print drawings and for passing off the goods and business of the Plaintiffs as that of the Defendant, by use of the impugned pirated artworks being the digital textile print drawings compiled into textile books/CD format etc.
2. In the above Suit, the Plaintiffs took out Notice of Motion No. 2474 of 2018 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 03:24:24 ::: Nitin 2 / 7 901-NMCD-2474-2018.doc seeking ad-interim and interim reliefs i.e. an order of injunction against the Defendant and appointment of the Court Receiver, High Court, Bombay as Receiver inter alia in respect of the disks, CDs, floppies, laptops, computers, books and papers used by the Defendant to print the infringing material, lying at the premises of the Defendant.
3. On 2nd November, 2018, this Court by its detailed order recorded that the Plaintiffs have made out a prima facie case and the balance of convenience was in favour of the Plaintiffs and granted ad-interim reliefs in favour of the Plaintiffs and against the Defendant in terms of prayer Clauses (a), (b) and (c) of the Notice of Motion. Prayer Clauses (a), (b) and (c) are reproduced hereunder :
"(a) pending the hearing and final disposal of the suit, the Defendant by himself, his legal heirs, servants, agents, distributors, dealers, assignees and all those connected with the Defendant in his business be restrained by an order and injunction of this Hon'ble Court from reproducing, printing, publishing, distributing, selling and/or using in any manner whatsoever the impugned pirated artworks being the digital textile print drawings compiled into textile design books (annexed at Exhibit J to the Plaint) amongst others bearing a color scheme, get-up, layout, placement of features, representation, style, trade dress and artwork/s or any other artwork/s which is/are identical with and/or is/are substantially/strikingly similar to the Plaintiff's original artistic works depicted in its digital textile print drawings compiled into textile design books (appended at Exhibits and D to the Plaint), so as to infringe upon the Plaintiffs' subsisting copyrights in its said original artistic works;
(b) Pending the hearing and final disposal of the suit, the Defendant ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 03:24:24 ::: Nitin 3 / 7 901-NMCD-2474-2018.doc by himself, his legal heirs, servants, agents, distributors, dealers, assignees and all those connected with the Defendant in his business be restrained by an order and injunction of this Hon'ble Court from reproducing, printing, publishing, distributing, selling and/or using in any manner whatsoever the impugned pirated artworks being the digital textile print drawings compiled into textile design books (annexed at Exhibit J to the Plaint) or any artwork/s which is/are identical with and/or is/are substantially/strikingly similar to the Plaintiff's original artistic works depicted in its digital textile print drawings compiled into textile design books (appended at Exhibits and D to the Plaint), so as to pass off his goods and business as and for those of the Plaintiffs or in some way connected or associated therewith;
(c) pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay be appointed under Order XL Rule 1 of Civil Procedure Code, 1908, as the Receiver of the Defendant's goods viz. digital textile print drawings printed/published bearing the impugned pirated artworks and other things and records in respect thereof with all powers to forcibly enter upon the premises of the Defendant and/or its printer/s, agents, dealers, stockists and/or any person claiming through them without notice to the Defendant and with the help of Police if necessary, make an inventory, seize and take custody/possession thereof by sealing the said goods at the Defendant's premises under lock and key and also of all related items such as stationery, production registers, invoices and printing materials including disks, CDs, floppies, laptops, computers, books and papers used to print the infringing materials, lying at the premises, offices or factories, manufacturing units, godowns, ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 03:24:24 ::: Nitin 4 / 7 901-NMCD-2474-2018.doc warehouses of the Defendant or his agents or at any other place/s and the Defendant by himself, his legal heirs, servants, employees, representatives be ordered and directed to deliver up all of the aforesaid to the Court Receiver or to such other fit and proper person as this Hon'ble Court thinks fit and the Court Receiver must carry out such search and seizure with local police assistance, if necessary, at no costs.
4. Accordingly, the representative of the Court Receiver executed the Order passed by this Court dated 2nd November, 2018. The Court Receiver inter alia seized and took custody/possession of the hard disk, CDS, floppies etc. which were used by the Defendant to print the infringed material and sealed the same. The Court Receiver as per the normal practice left the sealed packet with the Defendant, who gave an undertaking to safeguard the same.
5. Thereafter, on 4th December, 2018, Consent Terms were tendered by the parties, whereunder the Defendant submitted to a Decree in favour of the Plaintiffs in terms of prayer Clauses (a), (a) (i), (b), (b) (i), (c) of the Plaint, which are reproduced in the Consent Terms. The Defendant also agreed to pay an amount of Rs.60 Lacs by way of demand draft towards costs/damages to the Plaintiffs. The Defendant also gave an undertaking to destroy all the goods namely textile design, books, printing, material, disks, CDs, floppies, laptops, computers, books and papers, which were seized by the Court Receiver and thereafter sealed and left in the safe custody of the Defendant with an undertaking to safeguard sealed impugned material in the presence ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 03:24:24 ::: Nitin 5 / 7 901-NMCD-2474-2018.doc of the representative of the Plaintiffs.
6. However, when the representative of the Plaintiffs visited the premises of the Defendant to enable the Defendant to destroy the seized goods in his presence, he was shocked to note that the seal of the Court Receiver was broken by the Defendant and obviously the material seized by the Court Receiver was removed and replaced with some other material.
7. The Plaintiffs therefore mentioned the matter before this Court and informed the Court about the aforestated conduct of the Defendant.
8. Mr.P.P. Fouzdar,Advocate appearing for the Defendant vehemently opposed the submissions made by the Plaintiffs and went to the extent of alleging a nexus between the Plaintiffs and the representative of the Court Receiver in order to frame his Client i.e. the Defendant. The Court Receiver was therefore directed to file his Affidavit, which he did. The Defendant was directed to file his Affidavit in response to the Affidavit filed by the Court Receiver on or before 30th January, 2019. However, on 30th January, 2019, when the matter was called out, the Defendant and his Advocate were not present. The Order dated 24th January, 2019, was also not complied with. When the Advocate for the Plaintiffs contacted Advocate P.P. Fouzdar on phone, he informed him that he has returned the papers to the Defendant. The Defendant was therefore directed to appear before this Court today at 03.00 p.m.
9. Accordingly, today the Defendant is present in Court. He has informed the Court that he had broken the seal of the goods seized by the Court Receiver and had ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 03:24:24 ::: Nitin 6 / 7 901-NMCD-2474-2018.doc removed its contents and replaced the same by some other disk, CDs, floppies etc. before filing the Consent Terms. His Advocate P.P. Fouzdar informed the Court that he is not representing the Defendant in view of his conduct. The wife of the Defendant, who is not a party to the above Suit and was not asked to remain present in Court, started shouting in Court at the top of her voice that the Defendant should be forgiven. She started crying and she lay down on the floor disrupting the Court proceedings. The lady constables were therefore summoned, who failed to turn up for 15-20 minutes. In the meantime, the wife of the Defendant started hitting her head on the ground and on the Witness Box thereby obstructing the functioning of the Court. She was thereafter removed from the Court with grave difficulty by a lady constable. I am also informed that she bit the lady constable when she tried to stop her from conducting herself in the aforestated manner.
10. From what transpired in the Court, I have gathered an impression that the Defendant had come with his wife and other family members to Court with the intention of disturbing/obstructing the Court proceedings and to prevent the Court from taking any action against the Defendant. Before taking any action against the Defendant and his wife for their aforestated conduct in Court, I pass the following order :
i. Mr. P.P. Fouzdar, Advocate appearing for the Defendant is discharged from appearing for the Defendant in the matter.
ii. The Defendant shall comply with the Order/direction of this Court dated
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Nitin 7 / 7 901-NMCD-2474-2018.doc
24th January, 2019 and appear in Court along with his new Advocate on 4th February, 2019 at 03.00 p.m. iii. The wife of the Defendant, who is not a party to the above Suit, shall not enter in the Court Room unless so directed.
iv. Stand over to 4th February, 2019.
( S.J.KATHAWALLA, J. )
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