Gujarat High Court
Diyora Bhanderi Corporation vs Sarine Technologies Ltd on 22 November, 2021
Author: Aravind Kumar
Bench: Aravind Kumar
C/MCA/1057/2018 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1057 of 2018
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DIYORA BHANDERI CORPORATION
Versus
SARINE TECHNOLOGIES LTD
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Appearance:
MR SAURABH SOPARKAR, SENIOR ADVOCATE FOR MR MANAN A
SHAH(5412) for the Applicant(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
for the Opponent(s) No. 2
MR YATIN OZA, SENIOR ADVOCATE FOR MR DILIP B RANA(691) for
respondent No.1
MR NEERAJ MALHOTRA, SENIOR ADVOCATE WITH MR. SANDEEP
GROVER, MR ISHWER UPNEJA AND MS VARA GAUR for respondent No.2
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 22/11/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The present proceedings had been initiated for alleged violation of the order dated 21.2.2018 passed on Exh.71 by the Commercial Court, Vadodara. For the purpose of immediate reference, said order which is alleged to have been violated or not complied is extracted hereinbelow:
"Plaintiff is also directed to submitted the certified copy of the copyrighted software's source code and object code in sealed cover on 21.2.2018."Page 1 of 5 Downloaded on : Wed Jan 12 03:14:43 IST 2022
C/MCA/1057/2018 ORDER DATED: 22/11/2021
2. We have heard Mr. Saurabh Soparkar, learned Senior Counsel appearing for Mr. Manan Shah for the complainants, Mr. Yatin Oza appearing for Mr. Dilip Rana for the respondent No.1 and Mr. Neeraj Malhotra, learned Senior Counsel appearing for Mr. Sandeep Grover, Mr. Ishwer Upneja and Ms. Vara Gaur for the respondent No.2.
3. Perused the records. The pivotal issue in this contempt proceedings revolves around non-compliance of the order dated 12.2.2018. In fact, said order dated 21.2.2018 has been further clarified by order dated 4.5.2018 passed on Exh.92 whereunder the learned trial judge has observed as under:
"4. Having considered the submissions, in these circumstances, it is made clear that the expert shall compare registered object code and source code of the software of the plaintiff with the defendants' software. The other material/additional material (which is not in accordance to the orders of the court) produced by the plaintiff in the sealed cover need not to be considered by the expert. It is made clear that this Court has passed the orders for comparison of the source code and object code in respect of registered version of the plaintiff. The orders dated 12/02/2018 and 28/02/2018 passed by this Court and order dated 21/10/2017 of the Hon'ble High Court be complied with in letter and spirit. It is again made clear by the court that at the time of deciding the logistic for comparison of source code Page 2 of 5 Downloaded on : Wed Jan 12 03:14:43 IST 2022 C/MCA/1057/2018 ORDER DATED: 22/11/2021 and object code, the Court will decide that what material is required to be sent for comparison in compliance of the orders. Further keeping in view the confidentiality of source code, the certified copy of the software advisor G.O. be kept in sealed cover. The separate order for safe custody of the software will be passed today.
5. So far the plea of non-compliance of order is concerned, if it is so, in such eventuality, it is made clear that the plaintiff shall face the consequence in accordance to the law and defendants are permitted to point out the said non-compliances to the Court at the time of hearing the application below Exh.5."
4. The affidavit filed before the trial court by the authorized signatory of the contemnor would disclose that contemnor herein had asserted in said affidavit that order dated 12.2.2018 and 21.2.2018 had been complied by submitting the source code and object code with the Court Commissioner in a sealed cover and physical form and same having been furnished in the form of a pen-drive also. In fact, this assertion and denial having been considered by the learned trial judge in its subsequent order dated 4.5.2018 has clearly opined that at the time of deciding the logistic for comparison of source code and object code, the Court will decide what material is required to be sent for comparison in compliance of the orders.
5. That apart, we notice that an application came to be Page 3 of 5 Downloaded on : Wed Jan 12 03:14:43 IST 2022 C/MCA/1057/2018 ORDER DATED: 22/11/2021 filed by the defendants namely the complainants herein as per Annexure-P5 seeking for initiation of contempt proceedings for disobedience of the order dated 12.2.2018 which is said to have been withdrawn. Further, defendants by Exh.113 filed an application and sought for a direction to the plaintiff to submit certified copy of the source code for which the copyright registration had been obtained by them so that same can be used for comparison and in continuance thereof sought to direct the expert to use the same for comparison with ancillary reliefs. Said application came to be considered by the trial judge and by order dated 17.10.2018 came to be dismissed with costs and it is specifically made clear under the said order to the following effect:
"Needless to state that the expert to carry out the comparison of Source code and Object code which shall be restricted to Source code Object code in respect of registered Version of the plaintiff with the same stipulations and terms and conditions, as ordered by this Court below Exh.88 and 98 followed by the order passed by the Hon'ble Supreme Court."
6. Thus, the issue relating to the source code and object code by either of the parties is a subject matter of adjudication which will be undertaken by the trial court and both parties in Page 4 of 5 Downloaded on : Wed Jan 12 03:14:43 IST 2022 C/MCA/1057/2018 ORDER DATED: 22/11/2021 unison admit that the matter is still at large before the trial court and it is at the stage of recording the evidence. If it were to be so, it is for the parties to prosecute their claim before the trial court and question of proceeding with the present contempt proceedings does not arise in the light of the assertion made by the contemnors/respondents by filing an affidavit in the present proceedings stating that orders dated 12.2.2018, 21.2.2018 and 28.2.2018 having been complied and denied by the complainant. However, we make it clear that we have not expressed any opinion and all contentions of both parties are kept open. It is needless to state that in the event of complainants being aggrieved by the final order that may be passed in the suit, they would be at liberty to take such steps as they deem fit in the manner known to law. The contempt proceeding stands dropped and all pending Misc. Civil Application stands dismissed. Notice is discharged.
(ARAVIND KUMAR,CJ) (HEMANT M. PRACHCHHAK,J) RADHAKRISHNAN K.V. Page 5 of 5 Downloaded on : Wed Jan 12 03:14:43 IST 2022