Supreme Court - Daily Orders
Sarine Technologies Limited vs Diyora And Bhanderi Corporation on 24 November, 2020
Bench: Rohinton Fali Nariman, K.M. Joseph, Aniruddha Bose
ITEM NO.14 Court 2 (Video Conferencing) SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 21953/2019
(Arising out of impugned final judgment and order dated 19-07-2019
in MCA No. 548/2019 passed by the High Court of Gujarat at
Ahmedabad)
SARINE TECHNOLOGIES LIMITED Petitioner(s)
VERSUS
DIYORA AND BHANDERI CORPORATION & ORS. Respondent(s)
(FOR ADMISSION and I.R.) (With IA No. 82228/2020 - APPLICATION FOR PERMISSION, IA No. 107254/2020 - APPROPRIATE ORDERS/DIRECTIONS, IA No. 62915/2020 – CLARIFICATION/DIRECTION, IA No. 82229/2020 - EXEMPTION FROM FILING AFFIDAVIT, IA No. 150961/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES and IA No. 157559/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 24-11-2020 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN HON'BLE MR. JUSTICE K.M. JOSEPH HON'BLE MR. JUSTICE ANIRUDDHA BOSE For Petitioner(s) Mr. Neeraj Kishan Kaul, Sr.Adv.
Mr. Gopal Jain, Sr. Adv.
Mr. Neeraj Malhotra, Sr. Adv.
Mr. Sandeep Grover, Adv.
Mr. Aditya Nayyar, Adv.
Ms. Vara Gaur, Adv.
Mr. Pai Amit, AOR Ms. Namisha Chadha, Adv.
For Respondent(s) Mr. Chander Lall, Sr. Adv.
Ms. Nancy Roy, Adv.
Mr. Vinod Khurana, Adv.
Mr. Rajat Sabu Thoppil, Adv.
Mr. P. V. Dinesh, AOR
Signature Not Verified
Digitally signed by
Nidhi Ahuja UPON hearing the counsel the Court made the following
Date: 2020.11.26
17:10:07 IST
Reason: O R D E R
The present petition arises out of a contempt petition 1 SLP No(s). 21953/2019 that was filed in the High Court for contempt of order dated 12.02.2018 by the learned Commercial Judge at Vadodara in Commercial Trademark Suit No. 8/2017. As per Order dated 01.06.2018, DLL files were not given by the Indian company, resulting in a comparison between the technologies of the Indian company and the Israeli company, not being possible by experts. The impugned High Court’s Order dated 19.07.2019 found that there was no contempt in that the order dated 01.06.2018 was only tentative, and in any case, it could not be said that there was any wilful disobedience thereof.
When the matter came before us, orders were passed by this Court in which, specifically by order dated 12.12.2019, we requested the Director of IIT Delhi to appoint a neutral expert in order that a report be made to this Court. The expert has since been appointed, viz., Prof. Smruti R.Sarangi, Associate Professor, Computer Science and Engineering, IIT Delhi. She has since submitted a report dated 24.09.2020 to this Court in which she has come to the conclusion:
“5. Impression and Conclusion Given the fact that we did not find any code similarity after extensive analyses with state-of- the-art tools, we can rule out the fact that any source or object code was copied. However, the output interface (.dat file) of both the software programs shares the initialization vector and has the same format. In other countries (US and EU), this would have fallen under fair use, and would not have constituted copyright infringement. The 2 SLP No(s). 21953/2019 Copyright Act of 1957 (with the amendment 49 of 1999) does provide protection to companies that reverse engineer the interface, when there is no other choice. In my view, the actions of the defendants fall in this category.” Since the present petition arises out of a contempt petition, it is important to note that in the aforesaid report and more particularly, in Annexure ‘C’ thereof entitled ‘Technical Details’, the learned expert expressly states that the DLL files were ultimately given to the expert by the Defendant, that is the Indian company. As a result of which, it was possible for the aforesaid expert to compile the entire source code. This being the position, it is unnecessary to pursue the contempt proceedings any further. We, therefore, relegate the parties to argue the interlocutory application that is pending. We make it clear that the aforesaid report which is in a sealed cover before us shall be handed over in a sealed cover to the learned District Judge who is hearing the injunction application.
We also make it clear that since confidential information is contained in the aforesaid report, the aforesaid report shall be kept secret and must not be shared with anybody else by the petitioner.
We make it clear that the matter must be argued on its own merits and we further make it clear that the aforesaid report that has been given to us is not conclusive of the matter in any manner. It is open for both the parties to 3 SLP No(s). 21953/2019 adduce whatever evidence is available to them and ask for adducing of additional evidence, if otherwise permitted in law.
Shri Neeraj Kishal Kaul learned senior counsel appearing on behalf of the petitioner has made a request to us that it will be open for him to present his objections to the report submitted to us and if necessary, ask for additional evidence in the shape of other reports. We think this is a reasonable request and the learned District Judge would therefore, take into account this request and thereafter, decide the matter expeditiously strictly on its own merits.
The present special leave petition, therefore, stands disposed of.
Pending applications stand disposed of.
(NIDHI AHUJA) (NISHA TRIPATHI)
AR-cum-PS BRANCH OFFICER
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