Delhi High Court - Orders
The Foundry Visionmongers Limited vs Cinegence Media Private Limited & Anr on 26 May, 2023
Author: Amit Bansal
Bench: Amit Bansal
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 150/2023
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr.Pravin Anand, Ms.Imon Roy,
Mr.Apoorv Bansal and Ms.Shreya
Shukla, Advocates.
versus
CINEGENCE MEDIA PRIVATE
LIMITED & ANR. ..... Defendants
Through: Ms.Avni Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 26.05.2023 I.A. 10514/2023 (exemption from advance service to defendants)
1. The present application has been filed on behalf of the plaintiff seeking exemption from advance service to the defendants.
2. Counsel for the defendant enters appearance in the present matter. Hence, it is directed that a copy of the application be supplied to the counsel for the defendants.
I.A. 10513/2023 (O-XXVI R-9 of CPC)
3. Vide order dated 15th March, 2023, this Court had granted ex parte ad interim injunction against the defendants and also appointed a Local Commissioner to visit the premises of the defendants and inspect the storage/replicating medias in the computer systems of the defendants, with CS(COMM) 150/2023 Page 1 of 5 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 25/09/2023 at 10:16:56 the assistance of technical experts and prepare audit reports/inventories of the same to determine if the said computer systems contain pirated/counterfeit/unlicensed versions of the plaintiff's softwares. The commission was executed by the Local Commissioner on 20th March, 2023 and the following observations have been made by the Local Commissioner in its Report dated 3rd April, 2023:
"9. After conducting the inspection at Premise 1 and Premise 2, followings were observed:
(i) Total systems at Premise 1 & 2 = Desktop-65
Laptop - 07
Server - 02
_________
74
(ii)Out of 74 systems, 64 systems have been found to be installed with different versions of NUKE software in the following manner:
(a) Nuke 12.2V 5 - on 64 Systems 10 users found to be connecting to Server 172.20.1C6.l50 and remaining 54 users found of to be connecting Server 172.20.106.142 which was not found at the Premise I and/or Premise 2.
(b) Nuke 11.3 V3 - on 13 systems 10 users found to be connecting to server 172.20.l06.150 and 03 users found to be connecting to the server 172.20.l06.142 which was not found at the Premise l and/or Premise 2.
(c) Nuke 13.0V1 - on 01 system found to be connecting to the server 172.20.106.142 which was not found at the Premise l and/or Premise 2.
Copy of Final Summary, consisting of aforesaid detailed inspection analysis of Defendant's computer systems at Premise 1 and Premise 2 are annexed herewith as DOCUMENT 3"
4. From the aforesaid, it appears that the defendants had unauthorizedly installed the plaintiff's NUKE softwares on various computer systems at their premises.
5. Counsel for the plaintiff submits that the defendants did not co-
CS(COMM) 150/2023 Page 2 of 5This 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 25/09/2023 at 10:16:56 operate with the Local Commissioner and also attempted to disrupt the inspection several times. Attention of the Court has been drawn to paragraphs 7 and 18 of the 'On-the-Spot-Proceedings Report' of the Local Commissioner, which are set out below:
"7. Fu1ther, Defendant's representative, Mr. Sohel Memon, came up with a physical copy of Non-Disclosure Agreement (NDA) and asked me to sign the NDA as part of Defendant's company policy. I explained him that I am Hon'ble Delhi High Court appointed court representative and bound by confidentiality obligation and not required to sign any NDA separately with the Defendant. ·However, he kept insisting me again and again to sign the NDA at multiple occasion and at every time I explained him my inability to sign any paper with Defendant company stating that l am Hon'ble court representative.
xxx xxx xxx
18. When we asked the Defendant to hand over the screenshot of all systems, the CEO of the company started shouting and refused to hand over all those documents and told me very clearly that he will not hand over and let the court do whatever it wants to do."
6. Counsel for the plaintiff further submits that the technical experts accompanying the Local Commissioner had saved certain screenshots in the local storage drives of each inspected computer system as evidence of the material found in the said computer systems. However, Mr. Stephen Mascarenhas, CEO of the defendant no.1 company, refused to hand over the said screenshots to the Local Commissioner stating that such screenshots may contain confidential information of the defendant no.1 company and that the same cannot be handed over to the Local Commissioner in the absence of Non-Disclosure Agreement being entered into between the defendant no.1 company and the Local Commissioner. Therefore, the Local Commissioner could not file a complete Report of the commission executed on 20th March, 2023. The relevant paragraph of the Local Commissioner's CS(COMM) 150/2023 Page 3 of 5 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 25/09/2023 at 10:16:57 report is set out below:
"10. It is pertinent to mention hereby that During the inspection of Premise I and Premise 2, the undersigned, with the help of Plaintiff's IT expert(s), saved screenshots of each inspected computer system in the local drive of Defendant. However, when the undersigned asked the Defendant to hand over such saved digital data to the Undersigned, Mr. Stephen Mascarenhas (CEO of the Defendant company) started soughing and refused to hand over aforesaid supporting digital data stating that such data may contain Defendant's confidential information and he will not handover such data to the Undersigned since the undersigned has not signed Non Disclosure Agreement with the Defendant company."
7. By way of the present application, the plaintiff has sought fresh directions for appointment of Local Commissioner for seizing and sealing relevant storage/replicating media from the premises of the defendant no.1 as the earlier commission could not be executed in a proper manner.
8. Issue Notice.
9. Notice is accepted by the counsel appearing on behalf of the defendants.
10. A perusal of the Report of the Local Commissioner on a prima facie view suggests that the defendants have interfered with the execution of the commission as directed by this Court and also caused obstruction to the execution of the said commission. This Court takes a serious view of the conduct of Mr. Stephen Mascarenhas as noted in paragraph 18 of on-the- spot-proceedings Report and paragraph 10 of the Local Commissioner's Report dated 3rd April, 2023 as set out above.
11. Mr. Stephen Mascarenhas shall file an affidavit before the next date of hearing showing cause as to why contempt of court proceedings should not be initiated against him for having caused hindrances in the execution of CS(COMM) 150/2023 Page 4 of 5 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 25/09/2023 at 10:16:57 the commission ordered by this Court. He shall be also be present in Court on the next date of hearing.
12. List on 25th July, 2023, the date already fixed.
13. As noted in paragraph 10 of the Local Commissioner's Report, certain screenshots have been saved in the local storage drive of the computer systems that were inspected by the Local Commissioner along with the plaintiff's technical experts on 20th March, 2023. Therefore, it is directed that the defendants shall not tamper with or delete aforesaid screenshots from the inspected computer systems.
AMIT BANSAL, J.
MAY 26, 2023 rt CS(COMM) 150/2023 Page 5 of 5 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 25/09/2023 at 10:16:57