Delhi High Court - Orders
Bentley Systems And Anr vs Nakshatech Pvt Ltd And Ors on 17 May, 2023
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 659/2023
BENTLEY SYSTEMS AND ANR ...... Petitioners
Through: Mr. Ankur Katyal, Advocate
versus
NAKSHATECH PVT LTD AND ORS ...... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
ORDER
% 17.05.2023 CM APPL. 25712/2023 (for exemption) Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of. CONT.CAS(C) 659/2023
1. This is a petition filed against the Respondent for willful disobedience of the order dated 20.02.2023, passed by the District Judge, Commercial Court-02, South East, Saket Courts, New Delhi ('Trial Court') in an application under Order XXXIX Rule 1 and 2 of CPC, filed in C.S. (COMM) 171/2023. The operative portion of the said order reads as under:
"In such circumstances, an ad-interim exparte injunction in favour of plaintiff and against the defendant is passed. Accordingly the defendant, their agents, servants or employees and or any other acting for and on their behalf stands restrained from directly or indirectly reproducing, storing or using microstation software programmed without obtaining licenses from the plaintiff till the next date of hearing."
2. Learned counsel for the Petitioner states that the Petitioner had visited 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 24/09/2023 at 11:50:13 the premises of the Respondent on 28.02.2023 along with local Commissioner appointed by the Court.
2.1. He states upon inspection of the premises, the Respondent was found to be using illegal software on seventeen (17) machines, which machines as per the order dated 20.02.2022 were seized and handed back to the Respondents on Supardari basis. He states that the Petitioner has tampered the said sealed machines and has started using the software of the Petitioner. 2.2. He states that the said fact has been verified since, the Petitioners have started receiving pings on its server, thereby confirming that the Respondents are continuing to use the Software called 'Microstation'.
3. This Court has perused the petition and in view of the fact that the Petitioner's application under Order XXXIX Rule 1 and 2 of CPC is pending before the Trial Court, this Court is of the opinion that the Petitioner herein has appropriate remedy under order XXXIX Rule 2A of CPC to approach the Trial Court for the allegations of disobedience made in this petition. In this regard, it would be instructive to refer to the decision of Coordinate Bench of this Court in Om Prakash @ Ommi v. Omwati & Ors., 2017 SCC OnLine Del 7527, wherein the Coordinate Bench has held as under:
"4. A Division Bench of this Court in Bimal Chandra Sen v. Kamla Mathur; 1982 Law Suit (Del) 152 has held that in the case of disobedience of an injunction, the remedy lies in approaching the Court that had issued the injunction order. The Division Bench has also held in the said case that the process of contempt cannot be used to compel performance of a civil obligation. The relevant observation of the Division Bench is reproduced hereinbelow:--
XXX XXX XXX
5. A Coordinate Bench of this Court in Jamna Datwani v. Kishin Datwani, Cont. Cas.(C) 652/2014, decided on 24th September, 2014 has held as under:--
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 24/09/2023 at 11:50:13 XXX XXX XXX
6. I have carefully considered the submissions made by the learned counsel for the petitioner and have also gone through the judgments cited. The questions which arise for consideration, in the instant case, are firstly, whether a case for initiation of contempt proceedings against respondent No. 1 is made out and secondly, even if it is prima facie made out, whether the petitioner has an alternate efficacious remedy available to her in getting the order implemented, then she must, in the first instance, resort to the same. Moreover, the grievance of the petitioner is essentially for recovery of monies which can be resorted to by filing an execution under Order 21 CPC in the court where the suit is pending adjudication. Reliance in this regard can be placed on the judgment of the Apex Court in Kanwar Singh Saini v. High Court of Delhi; (2012) 4 SCC 307.
xxxx xxxx xxxx xxxx
8. The provisions of Order 39 Rule 2A CPC not only deal with a situation where an injunction order has been passed by the civil court but it also deals and contemplates to deal with a situation where an order passed by the court, of which there is alleged to be willful disobedience, can be dealt with.
9. The only difference between the provisions under Order 39 Rule 2A CPC and the power of the court to punish for contempt under Sections 10, 11 and 12 of the Contempt of Courts Act, 1971, is the quantum of incarceration which a person can be sentenced to. Under the Contempt of Courts Act, 1971, a person can be sentenced for a period of six months, while under the provisions of Order 39 Rule 2A CPC, he can be sentenced to only three months apart from the fine component under both the provisions. Therefore, one of the remedies which is already available to the petitioner is under Order 39 Rule 2A CPC. She can also seek execution of the order for recovery of monies from respondent No. 1 by getting his share in the property in Friends Colony attached or getting his other properties attached and getting recovery effected. Therefore, there is ample mechanism prescribed under the CPC for the purpose of implementation of an order.
10. The contempt power under the Contempt of Courts Act is not only discretionary but is also to be used sparingly. A trend which has been noticed by this court is that parties invariably try to invoke the provisions of the Contempt of Courts Act in order to get orders implemented while there is machinery provided under the CPC for the purpose of getting orders, decrees or directions executed."
6. The Supreme Court in Kanwar Singh Saini v. High Court of Delhi, (2012) 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 24/09/2023 at 11:50:14 4 SCC 307 has made similar observations.
7. Consequently, the present contempt petition and applications are disposed of with liberty to the petitioner to file an application under Order 39 Rule 2A CPC."
(Emphasis Supplied)
4. Accordingly, the present contempt petition and pending applications are disposed of with liberty to the Petitioner to file an application under order XXXIX Rule 2A of CPC before the Trial Court.
MANMEET PRITAM SINGH ARORA, J MAY 17, 2023/rk/aa 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 24/09/2023 at 11:50:14