Delhi High Court
Microsoft Corporation & Anr. vs Indus Valley Partners (India) Pvt. Ltd. ... on 26 March, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th March, 2014
+ CS(OS) No.1379/2011
MICROSOFT CORPORATION & ANR. ..... Petitioners
Through: Ms. Jaya Negi, Adv.
Versus
INDUS VALLEY PARTNERS (INDIA)
PVT. LTD. & ANR. ..... Respondents
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. The two plaintiffs have instituted the present suit for an order of permanent injunction restraining the defendants from infringing the copyright of the plaintiffs as subsisting in their software programs by directly or indirectly copying, reproducing, storing, installing and/or using pirated/ unlicensed software programs of the plaintiffs, and for ancillary reliefs of delivery-up, rendition of accounts and damages of Rs 20,05,000/-, pleading:
I. that the plaintiff no. 1 Microsoft Corporation is a company organized and existing under the laws of the CS(OS) 1379/2011 Page 1 of 9 State of Washington, USA and engaged in manufacturing and licensing a range of software products, whereas plaintiff no. 2 Microsoft Corporation India Pvt. Ltd. is its wholly owned marketing subsidiary having its office in Nehru Place, New Delhi; II. that the plaintiff no. 1 (Microsoft Corporation) was set up in the year 1975 and is the biggest software publisher for personal and business computing in the world. The Plaintiff no. 1‟s popular software products include the most widely used operating system software, Microsoft Windows Operating Systems and application software such as Microsoft Office and development tools like Visual Studio, Visual C++;
III. that the plaintiff no. 1 is the owner of copyright in its software programs developed and marketed by it and these software programs are "Computer Programs" within the meaning of Section 2 (ffc) of the Copyright Act, 1957 and are included in the definition of "Literary Works" as per Section 2(o) of the Act;
CS(OS) 1379/2011 Page 2 of 9 IV. that the plaintiff no. 1 being the owner of copyright in the aforesaid literary works within the meaning of Section 17 of the Copyright Act, is entitled to all the exclusive rights flowing from such ownership enumerated under Section 14 of the Copyright Act; V. that the plaintiffs‟ computer programs are „works‟ that have been first published and registered in the USA, and as such also enjoy protection in India by virtue of Section 40 of the Copyright Act read with the International Copyright Order, 1999;
VI. that the plaintiffs in the month of December, 2010 received information from credible market sources that the defendants herein are using large volumes of software programs belonging to the plaintiff no. 1 on their computer systems for their business and other commercial purposes at their various offices without any proper authorization;
CS(OS) 1379/2011 Page 3 of 9 VII. that the plaintiffs thereafter contacted the defendants regarding conducting a SAM Review program in their organization but to no avail;
VIII. that the plaintiffs in the months of April 2011, conducted a search within their large and extensive database called "Microsoft Sales" which revealed that the defendants had made volume purchases only for:
S. No. Software Program No. of
Licenses
1. Microsoft Office XP 2
2. Microsoft Office 2003 30
3. Microsoft Office 2007 15
4. Microsoft Office Professional XP 3
5. Microsoft Office 2007 Plus 5
6. Microsoft Visio Professional 2007 10
7. Windows CAL User 2003 165
8. Windows Server Standard 2003 6
CS(OS) 1379/2011 Page 4 of 9
9. Windows XP Pro (Upgrade) 18
IX. that in order to confirm that the defendants were indeed
involved in the piracy of plaintiffs‟ software programs and to determine the sphere of activities of the defendants, two independent investigators were engaged to carry out an investigation;
X. that during the course of investigation, telephonic conversations with the employees of defendant no. 2 Indus Valley Partners (India) Private Limited revealed that there are approximately 240 desktop computer systems and 150 laptop computer systems which are used across 3 offices of Indus Valley across New Delhi and the employees of Indus Valley work on software programs such as Microsoft Office, Microsoft Windows, Microsoft Excel, Microsoft PowerPoint, Microsoft Silver Light, Microsoft SQL Server, etc for their business activities; XI. that from the investigations as well as the subsequent license cheque status of the defendants, it was evident CS(OS) 1379/2011 Page 5 of 9 that the defendants were indulging in piracy activities of the Software Programs of the Plaintiffs;
2. Summons of the suit and notice of the application for interim relief were issued and vide ex parte ad interim order dated 30 th May, 2011 the defendants were restrained from using any pirated/ counterfeit/unlicensed software of the plaintiffs in contravention of the terms of the End-User License Agreement(s) or infringing in any other manner the copyright of the plaintiffs. This court also appointed three Local Commissioners to inspect the respective premises of the defendants. The Local Commissioners so appointed have in compliance with the order dated 30 th May, 2011 filed their reports.
3. On 5th August, 2011 the plaintiffs moved an application stating that the then defendant no. 1 Mr. Pankaj Jain was merely an employee of the defendant no. 2 Indus Valley Partners (India) Pvt. Ltd. and that all disputes have been resolved between the plaintiff and the defendant no. 1 and accordingly the suit was dismissed as withdrawn qua the defendant no. 1 and now remains against Indus Valley Partners (India) Pvt. Ltd. & Indus Valley Partners (Mumbai) Pvt. Ltd.
CS(OS) 1379/2011 Page 6 of 9
4. Thereafter on 31st October, 2011 counsels for both the parties stated that the matter had been amicably settled between the parties and that an appropriate compromise application shall be moved in due course. However, thereafter on 8th November, 2011, 19th January, 2012, 23rd May, 2012, 27th July, 2012, 3rd October, 2012 the parties kept on taking adjournments stating that an application will be filed under Order 23 Rule 3 but no such application was filed. Then, on 14th January, 2013, the counsel for the plaintiffs stated that no settlement could be arrived at and the matter be heard. However, on 10th February, 2014, the counsel for the plaintiffs again stated that the parties have settled their dispute and an appropriate application will be moved but no such application has been filed.
5. Today, again the counsel for the plaintiffs seeks adjournment.
6. I am not inclined to adjourn the matter and to keep the suit so pending. None appears for the defendants. In fact, none has appeared for the defendants since after 3rd October, 2012 whereafter the suit is being adjourned at the instance of the counsel for plaintiffs only. I have thus considered the matter. The defendants having not filed the written statement, I have examined whether a decree under Order VIII Rule 10 of the CPC can be passed. I am of the view that insofar as the relief of CS(OS) 1379/2011 Page 7 of 9 permanent injunction as claimed in para 52(a) of the plaint is concerned, there is no impediment to the passing of a decree in terms thereof. I have in judgment dated 30th January, 2013 in CS (OS) No. 559/2010 titled Indian Performing Rights Society Vs. Gauhati Town Club held that in such cases, there is no need for requiring any ex parte evidence to be led when the plaint is supported by an affidavit and the material on record is otherwise sufficient. It is so in the present case.
7. As far as the other reliefs claimed by the plaintiffs are concerned, considering the history of the suit, need is not felt to give an opportunity to the plaintiff to prove the same. The Commissioners appointed by this Court in the reports submitted have reported large scale piracy by the defendants. This Court in such cases (see Time Incorporated Vs. Lokesh Srivastava 2005 (30) PTC 3(Del.) and Adobe Systems, Inc. Vs. P. Bhoominathan 2009 (39) PTC 658 (Del.)) has besides the compensatory damages also been awarding punitive damages. This suit was being listed with CS(OS) 1766/2010, also filed by the plaintiffs against some other persons who were also represented by the same advocate who was representing the defendants in this suit and joint requests for CS(OS) 1379/2011 Page 8 of 9 adjournments on the ground of arriving at a compromise were being made in both the suits.
8. CS(OS) 1766/2010 was ultimately disposed of on 24.05.2013 in terms of the compromise therein under which the defendants therein paid a sum of Rs.2,00,000/- to the plaintiffs herein. I am of the view that the award of punitive damages in the sum of Rs.2,00,000/- is thus appropriate in this suit also.
9. Accordingly, a decree is passed in favour of the plaintiffs and against the two defendants jointly and severally,
(i) in terms of prayer para 52(a) of the plaint.
(ii) of recovery of Rs.2,00,000/- by way of punitive damages.
The plaintiffs shall also be entitled to costs of the suit jointly and severally from the two defendants, with counsel‟s fee assessed at Rs.15,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J MARCH 26, 2014 SK CS(OS) 1379/2011 Page 9 of 9