Delhi High Court
Symantec Software Solutions Pvt Ltd & ... vs Ms. R. Modi & Ors on 17 October, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th October, 2016.
+ CS(OS) No.1842/2008
SYMANTEC SOFTWARE SOLUTIONS PVT.
LTD. & ORS ..... Plaintiffs
Through: Mr. Pravin Anand, Ms. Krutika Vijay,
Mr. Aashish Somasi and Mr. Ravin
Galgotia, Advs.
Versus
Ms. R. MODI & ORS. ..... Defendants
Through: Mr. C.M. Lall, Ms. Nancy Roy and
Ms. Adya Khanna, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.10065/2016 (of plaintiffs u/O XIV R-5 CPC) & IA No.10917/2016
(of defendants u/O XVI R-1&2 CPC and Chapter XI Rule 1 of Delhi
High Court (Original Side) Rules, 1967)
1. IA No.10065/2016 first came up before this Court on 19 th August,
2016, when the counsel for the defendants appeared on advance notice and
the following order was passed:
"1. The plaintiffs/applicants seek shifting of onus of the
following issue:-
"Whether the present suit has been instituted by a
competent and/or a duly authorised person? OPD"
from that placed on the defendants to that on the plaintiffs.
CS(OS) No.1842/2008 Page 1 of 26
2. The counsel for the defendants appearing on advance
notice states that the application is a guise to get over
production of Mr. Achuthan Sreekumar of the plaintiffs
summoned as a witness by the defendants and which order was
challenged by the plaintiffs by way of FAO(OS) No.171/2015
and which was dismissed on 1st August, 2016.
3. The counsel for the plaintiffs/applicants on enquiry
whether the plaintiffs/applicants, in the event of this application
being allowed, seek cancellation of the summons already issued
for appearance of Mr. Achuthan Sreekumar states that the
plaintiffs/applicants may do so. It is further contended that the
defendants in their application for summoning of Mr. Achuthan
Sreekumar had stated only the reason of onus of the aforesaid
issue being on the defendants and since Mr. Achuthan
Sreekumar is the signatory of the plaint.
4. The counsel for the defendants contends that the
defendants had applied for summoning of as many as seven
officials of the plaintiffs as witnesses to prove the aforesaid
issue and to prove the following issues:-
"(i) Whether the plaintiffs are guilty of entrapment.
OPD
(ii) Whether the suit is motivated in as much as it has
been filed with malicious intent to discredit the
defendants? OPD"
and of which the defendants were permitted to summon
only three; though the defendants in their application for
summoning had given only the reason to prove the issue about
valid institution of the suit against the name of Mr. Achuthan
Sreekumar but now that the defendants have been permitted to
summon only three witnesses, if Mr. Achuthan Sreekumar also
does not appear, the defendants would be prejudiced.
5. As per my understanding of law, the defendants having
summoned Mr. Achuthan Sreekumar of the plaintiffs as a
witness for specific purpose of examining him to prove that he
was not authorised to institute the suit or to sign and verify the
CS(OS) No.1842/2008 Page 2 of 26
plaint, would not be entitled to examine him on any other
aspect. The defendants, if now desire to examine Mr. Achuthan
Sreekumar on any other aspect, will have to apply therefor.
6. The counsel for the defendants states that the application
in that regard will be filed within a week.
7. It is deemed appropriate to consider both applications
together.
8. List on 1st September, 2016."
2. Thereafter, the defendants filed IA No.10917/2016 and opportunity
sought to file replies to both the applications was granted and arguments on
both the applications heard on 22nd September, 2016 (IA No.10065/2016
erroneously remained to be mentioned in the said order) and orders reserved.
3. As would be obvious from the aforesaid, the defendants have no
objection to IA No.10065/2016 of the plaintiffs, seeking to have the onus
changed of the issue framed in the suit of valid institution thereof from that
as placed on the defendants to that on the plaintiffs. The only objection of
the defendants thereto was on the ground of the plaintiffs by seeking so inter
alia dispensing with the production of the official of the plaintiffs summoned
by the defendants as a witness and in which regard the defendants have
already filed the other application; thus IA No.10065/2016 of the plaintiffs is
entitled to be allowed, keeping open the opposition by the defendants thereto
for consideration while deciding the other application.
CS(OS) No.1842/2008 Page 3 of 26
4. I may in this regard also notice that the onus of an issue as to the valid
institution of the suit and signing and verification of the plaint by a duly
authorized person ordinarily has to be on the plaintiff only, inasmuch as it is
only the plaintiff who can lead affirmative evidence of the valid institution of
the suit and signing and verification of the plaint by a duly authorized person
on behalf of the plaintiff or of ratification of the action of institution of the
suit and signing and verification of the plaint even if without authority at the
time of institution and the defendant can only lead evidence in the negative
in this regard. The order dated 26th October, 2009 of framing of issues in the
suit does not give any reasons for placing the onus of the said issue on the
defendants. The language of the issue framed in this regard also suggests
that the placing of onus thereof on the defendants is a typographical mistake.
If the onus of the issue had been intended to be on the defendants, the
language of the issue would have been "whether the suit has not been
instituted by a competent and/or duly authorised person?" However, I may
notice that where the Court finds that the objection by the defendant/s as to
the valid institution of the suit and signing and verification of the plaint is
vexatious and mala fide, the Court may either place the onus of the issue on
the defendant/s or frame the said issue with onus thereof on the plaintiff/s but
CS(OS) No.1842/2008 Page 4 of 26
specifying the costs which the defendant/s will have to pay to the plaintiff/s,
in the event of the said issue being decided in favour of the plaintiff/s.
5. Thus, IA No.10065/2016 of the plaintiffs under Order XIV Rule 5 of
Code of Civil Procedure, 1908 (CPC) is allowed on above terms and the
onus of Issue No.4 framed on 26th October, 2009, which is as under:
"4. Whether the present suit has been instituted by a competent
and/or a duly authorized person? OPD"
is shifted from that on the defendants to that on the plaintiffs.
6. The counsel for the plaintiffs on enquiry stated that the plaintiffs, as a
result thereof, do not want to examine any additional witness.
7. The defendants in their IA No.10917/2016 have inter alia stated:
(i) that the plaintiffs‟ evidence before the Commissioner appointed
for recording evidence in this suit was concluded on 5th April, 2011;
(ii) that the defendants filed their list of witnesses on 3 rd November,
2011 and applied for summoning of the seven officials of the
plaintiffs;
(iii) that on receipt of summons by the said witnesses, the plaintiffs
filed an application before this Court seeking cancellation of the
CS(OS) No.1842/2008 Page 5 of 26
summons issued to the said witnesses and this Court vide order dated
27th January, 2015 partially allowed the said application of the
plaintiffs, permitting summoning of only three of the said seven
witnesses;
(iv) that the plaintiffs preferred FAO(OS) No.171/2015 thereagainst
which was dismissed vide order dated 1st August, 2016;
(v) that though vide order dated 27th January, 2015 supra, the
defendants had been permitted to summon only three of the seven
officials of the plaintiffs whom the defendants originally intended to
summon but the defendants did not impugn the said order dated 27 th
January, 2015 in the hope that they would be able to extract the
relevant information from Mr. Achuthan Sreekumar during his cross-
examination, as the said Mr. Achuthan Sreekumar had instituted the
suit and signed and verified the pleadings in the plaint on the basis of
his knowledge;
(vi) however the plaintiffs filed IA No.10065/2016 supra to wriggle
out of the order dated 1st August, 2016 supra of the Division Bench;
(vii) that the defendants in their application for summoning of
aforesaid seven witnesses, against the name of Mr. Achuthan
CS(OS) No.1842/2008 Page 6 of 26
Sreekumar gave the reason of seeking to examine him only on the
issue qua valid institution of the suit and signing and verification of
the plaint in the hope that the defendants would be able to prove their
defence from the other witnesses sought to be summoned but which
witnesses have now been denied;
(viii) that none of the witnesses produced by the plaintiffs have been
able to answer questions regarding, who instructed investigations to be
conducted into the activities of the defendants, who permitted /
authorised Mr. Anil Nayar, the investigator to record the telephonic
conversation with the defendant No.1 Ms. Rupali Modi, who
instructed Mr. Anil Nayar to misrepresent to the defendant No.1 Ms.
Rupali Modi that he was a consultant and representative of an overseas
company;
(ix) that the business model of the plaintiffs and Business Software
Alliance (BSA) is that by filing suits as the present one and insisting
on huge damages and costs and forced sale of software, BSA as an
organization makes huge profits which are then shared with the
plaintiffs;
CS(OS) No.1842/2008 Page 7 of 26
(x) that it is only with the intention of hiding the dubious activities
of the plaintiffs and BSA, that the plaintiffs are not wanting to produce
Mr. Achuthan Sreekumar as a witness;
(xi) that BSA is a profit making entity which runs its operations by
filing litigations such as the present suit and the profits made from
such litigations are shared by the companies like the plaintiffs herein;
(xii) that out of the seven officials of the plaintiffs sought to be
examined by the defendants, only three were vide order dated 27th
January, 2015 permitted to be examined and now the plaintiffs out of
those three also want to evade production of Mr. Achuthan Sreekumar
"for examination / cross-examination;
(xiii) that since the defendants have been denied summoning of other
witnesses, "the defendants be permitted to examine / cross-examine
Mr. Achuthan Sreekumar on the issues framed vide order dated 4th
October, 2010 as well as Issue No.4 framed vide order dated 9 th
October, 2009 (sic for 26th October, 2009)";
(xiv) that the defendants in the alternative want summoning of Mr.
Keshav S. Dhakad, Mr. Tarun Sawhney, Ms. Karishma Gandhi and
Mr. Inzamuni of the plaintiffs "for examination / cross-examination".
CS(OS) No.1842/2008 Page 8 of 26
8. It is necessary to give the basic structure of the pleadings to appreciate
the aforesaid pleas in the application aforesaid of the defendants.
9. The five plaintiffs namely Symantec Software Solutions Private Ltd.,
Symantec Corporation, Autodesk India Pvt. Ltd., Autodesk Inc. and Adobe
Systems Incorporated have instituted this suit against Ms. R. Modi, Ms. K.
Modi and Mr. Nirav Modi carrying on business as Directors of elogic
Solutions India Pvt. Ltd. (impleaded as defendant No.4) for permanent
injunction to restrain the said defendants from infringing the software of the
plaintiffs and/or from using the pirated / counterfeit / unlicensed software of
the five plaintiffs and for ancillary reliefs inter alia pleading (a) that all the
five plaintiffs have joined in this action because the right to relief arises out
of the same act or transaction of the defendants and if separate suits were
instituted against the defendants, common questions of law and fact would
arise; (b) that the suit on behalf of the plaintiff No.1 Symantec Software
Solutions Private Ltd., New Delhi was instituted and plaint signed and
verified by Mr. Achuthan Sreekumar and the suit on behalf of the other
plaintiffs was instituted and the plaint signed and verified by Mr. Anand
Banerjee; (c) that the defendant No.4 elogic Solutions India Pvt. Ltd. appears
to be connected with a United States based entity named elogicTech
CS(OS) No.1842/2008 Page 9 of 26
Solutions Inc. and claimed to provide services in the field of 2D / 3D
Animation and Computer Aided Designs in addition to drafting solutions to
the global architecture, engineering and construction industry; (d) that in
July, 2008, the plaintiffs received information through BSA of usage of huge
unlicensed / pirated software programs of the plaintiffs by the defendants on
their computer systems; (e) that BSA is a non-profit association of global
software companies including the plaintiffs formed to fight software piracy;
(f) that the plaintiffs engaged the services of an independent investigator Mr.
Anil Nayar to carry out an investigation of the activities of the defendants;
(g) that on 6th August, 2008, the investigator made a phone call to the office
of the defendant No.4 elogic Solutions India Pvt. Ltd. and spoke to the
defendant No.1 Ms. Rupali Modi and informed her that he represented an
overseas client who had commissioned him to source out an Indian Company
which could develop and provide architectural drawings; (h) that the
defendant No.1 Ms. Rupali Modi informed the investigator that elogic
Solutions India Pvt. Ltd. could provide the desired services and a visit by the
investigator to the office of elogic Solutions India Pvt. Ltd. was arranged; (i)
that on 7th August, 2008, the investigator visited the office of elogic
Solutions India Pvt. Ltd. and Ms. Rupali Modi, to satisfy him of being
CS(OS) No.1842/2008 Page 10 of 26
possessed of sufficient infrastructure to handle the nature of the work
involved, informed the investigator about the number of computer systems
and the type of software programs that elogic Solutions India Pvt. Ltd. was
using; (j) that the said discussions confirmed use by the defendants of pirated
/ unlicensed versions of the software programs of the plaintiffs.
10. The suit was entertained and vide ex-parte ad-interim order dated 3rd
September, 2008, the defendants restrained from using in any computer
related activities or otherwise in any other manner any pirated software
programs of the plaintiffs or any software programs of the plaintiffs, without
licence and Commissioners appointed to visit the premises of the defendants
and to collect information of infringement.
11. The defendants have contested the suit by filing a written statement
inter alia pleading:
"F The defendants reserve their right to institute a separate
tortuous action against the so called investigator and the plaintiffs
in their personal capacity for tortuous liability for infringing the
privacy of the defendants by adopting illegal means and to entice
the defendants for the purposes of entrapment. The defendant is
also advised that the credentials of the investigator, Mr. Anil
Nayar are extremely doubtful to say the least. According to
reports Mr. Nayar was found "giving away key national secrets to
CS(OS) No.1842/2008 Page 11 of 26
foreign security firms" during his tenure with the Indian Army
special forces. The defendants have reliably learnt that Mr. Nayar
was thereafter removed from his last employment as he had
committed forgery. The defendants are further advised that in all
his previous employments, the said investigator has been removed
in disgrace. Certain select documents are being filed in these
proceedings. It is, therefore, not at all surprising that the
plaintiffs used the services of Mr. Nayar to entrap the defendants
and implicating them in the present action before this Hon'ble
Court. It is also noteworthy that, in the transcripts of the
conversation as annexed by the plaintiffs, the investigator called
his alleged, and fabricated, client to be "exact replica of Fluor
Daniel..." It is paramount to mention that the said Fluor Daniel
company is an engineering and construction corporation. By
falsely terming his company to be a replica of Fluor and
repeatedly using other means to entrap the defendants, the
plaintiffs are trying to make out a case on those copies of the
software programmes which the defendants have made genuinely
for their back up purposes.
G. It is humbly submitted that the present suit is not only an
abuse of process but also a prime example of suppression and
concealment before this Hon'ble Court for seeking an ex-parte
injunction by using the following means:-
(a) Harassing the defendants by subjecting them to the
proceedings in Delhi whereas the entire, though alleged,
CS(OS) No.1842/2008 Page 12 of 26
cause of action has arisen in Hyderabad and plaintiff No.3
has an authorised dealer in Hyderabad. It is also pertinent
to mention that the other plaintiffs, except, allegedly,
plaintiff No.1, do not even have office in India.
(b) The plaint, on behalf of plaintiff Nos.2 to 5, has been
signed by verified by a lawyer who, as per the information
received by the defendants, is a partner of the law firm
representing the plaintiffs.
(c) The owner of the copyright in the programmes has
not been made a party and the suit is liable to be dismissed
since it is a statutory requirement that the copyright owner
alone can bring a civil action.
(d) The person acting on behalf of the plaintiffs as the
investigator not only used means to entrap the defendants,
upon the information received by the defendants, they shall
be instituting a civil action against him and the plaintiffs
and all of their directors in personal capacity for infringing
the privacy of the defendants and subjecting them to
frivolous prosecution.
(e) The suit is grossly undervalued. The plaintiffs by
filing the present suit have played fraud with this Hon'ble
Court by alleging that the series of transaction is same. It
was so alleged by the plaintiff to save the court fees for each
plaintiff had they instituted a separate suit, if there was any
cause of action, against the defendants. Similarly, the law
CS(OS) No.1842/2008 Page 13 of 26
is well settled that the court fee is to be ad valorem to the
relief claimed. As per plaint, the alleged loss suffered is
"Crores of rupees...." It is perverse and totally arbitrary to
value the present suit as Rs.2 million though claiming the
loss suffered to be ten times than that. The plaint is liable to
be rejected on this ground alone."
12. In the issues first framed on 26th October, 2009, no issue on the
aforesaid pleas of the defendants in the written statement was framed. The
defendants applied under Order XIV Rule 5 CPC and vide order dated 4th
October, 2010, the following additional issues were framed:
"(a) Whether the plaintiffs are guilty of entrapment? OPD
(b) Whether the suit is motivated in as much as it has been filed
with malicious intent to discredit the defendants? OPD"
13. The defendants sought to summon seven officials of the plaintiffs as
witness in their defence evidence and to which objection was taken, as
aforesaid, by the plaintiffs. Of the said seven witnesses, the plaintiffs did not
object to the production of Mr. Anil Nayar aforesaid. Vide order dated 27th
January, 2015 (i) Mr. Achuthan Sreekumar was permitted to be examined
observing that his testimony was necessary to decide the institution of the
suit by a duly authorised person since issue in that regard had been framed
CS(OS) No.1842/2008 Page 14 of 26
and onus thereof was on the defendants and the plaintiffs had chosen not to
produce him; (ii) Ms. Rohini Boez was permitted to be examined observing
that the plaintiffs also in their list of witnesses though had cited her but not
examined her and PW-2 Gaurav Shankar examined by the plaintiffs had
deposed that the said Ms. Rohini Boez had received information regarding
the alleged use of unlicensed pirated software of the plaintiffs by the
defendants and in these circumstances she is a relevant witness; (iii) Mr.
Inzamuni sought to be examined on the ground that PW-1 Ashwin Mehta
had named him was not permitted to be summoned by the defendants finding
that no specific role had been attributed to him by PW-1 Ashwin Mehta; (iv)
Mr. Keshav S. Dhakad and Mr. Tarun Sawhney sought to be examined by
the defendants again, on the ground of their names having found mention in
the testimony of PW-4 Vinish Mehra, were not permitted to be summoned,
as the defendants had failed to disclose as to how their examination was
relevant to the controversy in the suit; (v) Ms. Karishma Gandhi sought to be
examined by the defendants on the ground of having been named by PW-3
Ms. Tanu Arora was also not permitted to be summoned again because the
defendants were unable to satisfy the relevance thereof.
CS(OS) No.1842/2008 Page 15 of 26
14. As aforesaid, the plaintiffs appealed against examination permitted of
Mr. Achuthan Sreekumar and Ms. Rohini Boez and which appeal was
dismissed inter alia holding:
"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 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."
15. The counsel for the defendants argued (a) that all the witnesses
examined by the plaintiffs shied away from taking the responsibility of
taking the decision for the institution of the suit; (b) that Mr. Achuthan
Sreekumar has signed the replication also as constituted attorney of all the
CS(OS) No.1842/2008 Page 16 of 26
plaintiffs; (c) that Ms. Tanu Arora examined by the plaintiffs also in reply to
Question No.1 in her cross-examination held on 4th January, 2011 deposed
that Mr. Achuthan Sreekumar had been briefed in the matter and had in reply
to Questions No.23 & 24 deposed that there is complete transparency
between BSA and its members and all members have access through all the
information whenever required.
16. Per contra, the counsel for the plaintiffs (A) referred to para 18(a) of
Man Kaur Vs. Hartar Singh Sangha (2010) 10 SCC 512 to contend that
where the principal at no point of time had personally handled or dealt with
or participated in the transaction and has no personal knowledge of the
transaction and where the entire transaction has been handled by an attorney-
holder, necessarily the attorney-holder alone can give evidence in regard to
the transaction; (B) contended that DW-1 Ms. R. Modi in reply to Question
No.51 during her cross-examination on 21st May, 2014 evaded to reply about
multiple software on each computer having been found by the Court
Commissioner appointed and in reply to Question No.33 could not show any
licence and thereby admitted to piracy; (C) stated that the Court
Commissioners appointed in the suit have sealed 79 computer systems and
each of such computer systems was found to have multiple pirated software.
CS(OS) No.1842/2008 Page 17 of 26
17. The counsel for the defendants in rejoinder pointed out to the
verification of the plaint and the replication of Mr. Achuthan Sreekumar
"based on his knowledge".
18. I however enquired from the counsel for the defendants, as to what
was the plea of the defendants of „entrapment‟ on which the defendants are
intending to examine the officials aforesaid of the plaintiffs. In my view, a
plea of entrapment which can constitute a defence in an action for
infringement can be, where the plaintiff has created circumstances for the
defendant, either to make an admission of being in possession of infringing
software or to, at the time of surprise inspection by the Commissioners
appointed by the Court, being in possession of infringing software, say by
providing to the defendant infringing software for carrying out some work or
by deleting parts of conversation / correspondence preceding or succeeding
the admission of being possessed of infringing software or in some other
such manner and in which facts the defendant can defend the suit by
pleading that they would not have made the admission of piracy of software
or would not have been found to be possessed of the pirated software but for
such entrapment by the plaintiffs. However, that is not the plea here. The
plea of the defendants is that the investigator Mr. Anil Nayar engaged by the
CS(OS) No.1842/2008 Page 18 of 26
plaintiffs approached the defendants pretending to act on behalf of some
client which was "exact replica of Fluor Daniel" and on the said pretext
visited the offices of the defendants and thereby became privy to the affairs
of the defendants.
19. I do not see any wrong therein and do not find the same to constitute a
plea of entrapment on which a suit for infringement of copyright in software
programs can be defended. Use of pirated / infringement of, software
programs is generally shrouded in secrecy with those indulging therein being
highly qualified and literate being well aware of the illegality thereof taking
all precautions and measures to avoid detection thereof. Without those
claiming copyright in the software programs being infringed resorting to
means as adopted by the plaintiffs and their investigators to assure
themselves, before initiating legal action, of piracy/infringement, it would be
virtually impossible for them to impregnate the offices and places and affairs
of infringers. The infringers will never, on straight questioning, give straight
answers. At the same time the owners / holders of copyright in software
programs, if rush to the Courts without fully satisfying themselves of the
defendant indeed indulging in infringement and without collecting proof
thereof to establish infringement in Court, may be accused of and become
CS(OS) No.1842/2008 Page 19 of 26
liable for malicious prosecution or frivolous litigation and costs and
consequences thereof. The Division Bench of this Court in Autodesk Inc.
Vs. A.V.T. Shankardass AIR 2008 Delhi 167, concerned with propriety of
ex parte appointment of Court Commissioner in cases of software piracy
held that in such cases an element of surprise is of critical importance and
necessary and issuance of notice would result in effacement of entire
incriminating evidence. It was further held that where the Court is satisfied
that the party is not able to produce the desired evidence for reasonable
circumstances, it may assist a party by appointing a Court Commissioner to
get the evidence. It was further held that service of notice in such cases
could result in , the movement of the computer system or infringing software
to unknown destination leaving no surviving evidence, thereby causing grave
prejudice to the plaintiff. In fact the Division Bench, while laying guidelines
on the subject observed that "it may not be always possible for a plaintiff to
obtain any admission by employing decoy customers and gaining access to
defendant‟s premises" and that "any such attempt also inheres in it the
possibility of disappearance of the pirated software/incriminating evidence in
case the decoy customer is exposed" and thus "visit by a decoy customer or
investigator is not to be insisted upon as pre-condition", thereby legalizing to
CS(OS) No.1842/2008 Page 20 of 26
what objection is being taken by the defendants in the present case. The said
view was followed by another Division Bench in Rajeev Kumar Vs.
Microsoft Corporation MANU/DE/1213/2014.
20. The counsel for the defendants then contended that the plaintiffs and
BSA indulged in a policy of picking and choosing the person/s against whom
the suit/s are to be filed and thereby coerce the person/s who are selected and
targeted for action to purchase software at much higher price than prevalent.
21. BSA is not a party to the present suit. Thus, no allegation against
BSA in its absence can be entertained.
22. As far as such allegations against the plaintiffs are concerned, even if
it were to be believed that the plaintiffs have chosen not to litigate with
others, also indulging in piracy / infringement of plaintiffs‟ software, the
same does not constitute a defence for the defendants, if guilty thereof. No
negative equality, as is the settled principle, can be claimed. Even otherwise,
if the volume of piracy / infringement of copyright in software is on a
mammoth scale, as is suggested by the counsel for the defendants, nothing
wrong can be found in the plaintiffs finding themselves unable to initiate
litigations against each and every infringer and initiating litigations against
CS(OS) No.1842/2008 Page 21 of 26
only such of the infringers, action whereagainst would send a message to the
infringers in general and/or yield substantial benefit to the plaintiffs.
23. No justification for either of the aforesaid queries having been given
by the counsel for the defendants, Mr. Achuthan Sreekumar or any of the
other official of the plaintiffs cannot be permitted to be examined by the
defendants to prove the additional issues framed on 4th October, 2010.
Significantly, the defendants have not made any counter claim for damages
against the plaintiffs. If the plaintiffs fail to prove the cause of action with
which suit has been instituted, the suit will be dismissed and the question of
costs if any to be awarded to defendants against plaintiffs shall be
adjudicated. Conversely, if the plaintiffs establish the cause of action, the
question of the suit being motivated or having been filed with malicious
intend to discredit the defendants would not arise.
24. A party to a litigation is not entitled to summon or examine a witness
without satisfying the Court of the relevance of the witness‟s testimony to
the lis for adjudication. The defendants here appear to have gone about the
exercise without this thought process. The court is not to allow its machinery
to be put into motion and to allow summoning of witnesses without applying
its mind to the relevancy of the testimony. Litigants cannot expect the Court
CS(OS) No.1842/2008 Page 22 of 26
to apply its mind only at the final stage of decision making and be a silent
spectator before that. By that time, damage to the other party and to person
unnecessarily summoned and examined as witness may already be done and
which cannot always be compensated with costs. Moreover, if the same
were permitted, the Court will not be able to decide the lis within reasonable
time or within the time stipulated under the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts Act, 2015 and
to which genre this suit belongs. This Court, in Amitabha Sen Vs. Sports
World International Ltd 2008(101) DRJ 528 also held that a party who
seeks for a prayer to the Court to issue summons to a witness, must reveal to
the Court the purpose for which the witness is proposed to be summoned.
Similarly in Union of India Vs. Orient Engineering & Commercial Co. Ltd.
(1978) 1 SCC 10 also it was held that it is not right that everyone who is
included in the witnesses list is automatically summoned.
25. I had in fact also enquired from the counsel for the defendants, as to
what purpose summoning by the defendants of the officials of the plaintiffs
would serve and whether the defendants had been permitted to cross-
examine the said witnesses. Else, a defendant summoning the plaintiff as his
CS(OS) No.1842/2008 Page 23 of 26
witness cannot, in law, be permitted to cross-examine him, without the
permission of the Court.
26. Both counsels appeared to have not considered the said aspect and it
appears that the defendants, though summoning the officials of the plaintiffs
as their own witnesses, had before the Commissioner proceeded to cross-
examine them without any objection.
27. The counsel for the defendants of course in response thereto cited the
judgment of the Division Bench of the High Court of Patna in Sri Awadh
Kishore Singh Vs. Sri Brij Bihari Singh AIR 1993 Pat. 122 holding that no
provision had been brought to the notice of the Court in that case of any of
the party being debarred from examining its adversary as a witness on its
behalf. Attention was also invited to the judgment of the Gujarat High Court
in Vashram Daya Harijan Vs. Bijal Deva Harijan (1971) 12 GLR 40
though noticing the condemnation by the Courts of the practice of calling the
opponent as own witness allowing the same in the facts of that case.
28. This Court, in Amitabha Sen supra, after examining a host of case law
including Sri Awadh Kishore Singh supra held that though there is no bar to
a party seeking the summoning of another party to the same suit as his
witness, it is also clear that such an act is unusual and that it should only be
CS(OS) No.1842/2008 Page 24 of 26
permitted if the application for summoning the opposite party is bona fide
and is not vexatious or an abuse of the process of the Court and in
exceptional circumstance. Finding the summoning of the sole shareholder of
the defendant in that case to be with the object of putting some pressure on
him and not in the interest of justice, the application for summoning was
rejected. Else, right since Mahunt Shatrugan Das Vs. Bawa Sham Dass
AIR 1938 PC 59, the practice of calling the defendant as a witness to give
evidence on behalf of the plaintiff has been condemned.
29. Supreme Court, in Sat Paul Vs. Delhi Administration (1976) 1 SCC
727 and Division Bench of this Court in State Vs. Ramesh Chand ILR
(1974) I Del 129 held that though it is not necessary that before a party
calling a witness can cross-examine him, the witness should be first declared
hostile and that the Court has unfettered discretion to allow a counsel to put
questions in the nature of cross-examination to his own witness during
examination-in-chief but before putting such questions leave of Court should
be asked for and obtained.
30. In the facts of the present case, I find no reason to allow the
defendants to examine Mr. Achuthan Sreekumar of the plaintiffs for
deposing on behalf of the defendants on the issue/s on which he is sought to
CS(OS) No.1842/2008 Page 25 of 26
be examined. Needless to state that if the defendants on their own evidence
have made out any case as pleaded by them and in opposition to which
evidence led by the defendants, it is found that it was essential for Mr.
Achuthan Sreekumar of the plaintiffs to appear as a witness, adverse
inference shall be drawn against the plaintiffs, not only for having not
produced the said Mr. Achuthan Sreekumar but also for having opposed his
production by the defendants.
31. Thus, IA No.10917/2016 of the defendants is dismissed.
32. Resultantly, Mr. Achuthan Sreekumar of the plaintiffs summoned by
the defendants to not appear as a witness.
33. The observations hereinabove contained are only for the purpose of
the decision of the applications aforesaid and not to have any bearing at the
time of final hearing of the suit.
No costs.
RAJIV SAHAI ENDLAW, J.
OCTOBER 17, 2016 „bs‟.
CS(OS) No.1842/2008 Page 26 of 26