Delhi High Court
Shashank Shekhar Mishra vs Ajay Gupta on 5 September, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 01.09.2011
Judgment Pronounced on: 05.09.2011
+ CS(OS) No. 1144/2011
Shashank Shekhar Mishra ..... Plaintiff
Through: Mr. Pavan Duggal, Advocate
versus
Ajay Gupta ..... Defendant
Through: None
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J
1. This is a suit for permanent injunction, rendition
of accounts, delivery up of the infringing material and
damages. The plaintiff, who is studying in Sri Ram Murti
Smarak Institute of Technology, Barielly, claims to be a tech
savvy professional with vast experience in the field of web
technologies including PHP, HTML, CSS, Java Script, J-
CS(OS)No. 1144/2011 Page 1 of 13
Query, Wordpress, Photoshop etc. According to plaintiff, he
is the author of "Quizpro Wordpress Plugin", using which
the Wordpress users can easily use quiz on their Wordpress
Blogs or Wordpress driven websites. It is alleged that on 9 th
November, 2010, the plaintiff purchased a laptop for a
consideration of Rs.34,100/- and used it extensively for the
purpose of web designing as well as doing and processing
various technology related activities on the internet. He was
also storing various user IDs, passwords and other data in
the laptop. Confidential financial information of the plaintiff
including details of his mother's bank account as well as
credit card information belonging to his cousin brother was
stored in the laptop. He was also using the laptop for
creating, storing and retaining the original web designing
templates, designs and styles.
The plaintiff claims to be the author of his original
web designing templates, designs and styles, software,
computer programme, software source code etc., the same
being original "literary works" within the meaning of Section
2(o) of Copyright Act, 1957. The source code according to
the plaintiff constitutes confidential data and information
CS(OS)No. 1144/2011 Page 2 of 13
which is kept under security so as to ensure its
confidentiality. He claims to have contributed immensely
through his skill, labour and knowledge, in developing and
producing the aforesaid templates, designs, styles,
softwares, source codes etc.
2. The plaintiff claims to have been very active on e-
commerce website www.algulfnet.biz and also claims to
have got various accounts therein. www.algulfnet.biz is a
service driven website which offers netizens the opportunity
to participate in surveys and earn online and also purchase
subscription for Surveys Online Today E-Zine along with
Panelist Training. The aforesaid website provides service in
many forms and for a variety of purposes. The website
works on the superstructure of ePins, wherein one pin is
equivalent to Rs.3600/- of actual commercial value. The
website allows the user, who has generated a minimum
specified number of points, to monetize those points and
redeem them for actual money, one point being equivalent
to Rs.50/-. According to the plaintiff, he had accumulated
thousands of points in his various accounts by participating
in various surveys conducted by www.algulfnet.biz and had
CS(OS)No. 1144/2011 Page 3 of 13
generated 212 ePins which are being displayed in his two
accounts. Thus, these e-pins are virtual data and
information in the electronic form, which are capable of
being translated into physical money. The value of these
212 e-Pins is alleged to be Rs.763200/-.
3. The case of the plaintiff is that on 25th April, 2011,
the defendant who was known to him, he being a user of the
website www.algulfnet.biz, barged into his room along with
2 anti social elements and snatched away his laptop which
contained confidential data and information including
sensitive personal data, personally identifiable information,
banking and credit card details as well as his 212 ePins. He
also threatened to make public all photographs, messages
etc. so as to tarnish the reputation of the plaintiff. It is
alleged that the laptop, snatched by the defendant
contained plaintiffs templates and designs, wordpress
themes designed in PHP technology, credit card information
of his cousin brother, his photographs with friends and
colleagues, a text and excel file of 212 ePins, usernames and
passwords of 52 extra algulf accounts, usernames and
passwords of the email accounts and other websites,
CS(OS)No. 1144/2011 Page 4 of 13
usernames and passwords of the server and the plaintiff's
11 websites hosted by the plaintiff, plaintiff's PHP source
codes of computer software, pan card details and ICICI bank
account details of his mother, private messages, admin
passwords of the website which the plaintiff had developed,
user name and password of the plaintiff for facebook page
as well as his user name and password for the website
www.godaddy.com.
The plaintiff has sought injunction restraining the
defendant infringing his copyright carrying out any business
or website containing the copyright material belonging to
the plaintiff and from transferring the aforesaid copyright
material to any person. He has sought an injunction
restraining the defendant from downloading, extracting,
distributing, transmitting, publishing, releasing or
disclosing the personal, confidential data and information of
the plaintiff. He has also sought mandatory injunction
directing defendant to handover the original laptop of the
plaintiff to him. The plaintiff has also sought delivery up of
all CDs, inlay cards, hard disks etc. containing the pirated
material. Rendition of accounts has also been sought by
CS(OS)No. 1144/2011 Page 5 of 13
the plaintiff amounting to Rs.20,10,000/- .
4. The defendant was proceeded ex parte on 7th July,
2011 as he did not appear despite service.
5. In his affidavit by way of ex parte evidence, the
plaintiff has supported on oath the case set up in the plaint.
6. I see no reason to disbelieve the unrebutted
testimony of the plaintiff and therefore hold that the
defendant had snatched his laptop containing the
information detailed in his affidavit by way of evidence.
Section 2(o) of Indian Copyright Act, defines
"literary works" to include computer programmes, tables
and compilations including computer "literary data bases.
Section 13 of the Act, to the extent it is relevant, provides
that copyright subsists in original literary works. Copyright,
in terms of Section 14 of the Act means, the exclusive right,
in case of computer programme, to reproduce the work in
any material form including its storage in any medium by
electronic forms, issue of copies of the work to the public
not being copies already in circulation, to perform work in
public or communicate it to the public, to make any
translation or adoption of the work and to sell or to give on
CS(OS)No. 1144/2011 Page 6 of 13
commercial rental or offer for sale or for commercial rental
any copy of the computer programme. Section 17 of the
Indian Copyright Act, to the extent it is relevant, provides
that the author of the work shall be the first owner of the
copyright therein. Therefore, the plaintiff holds copyright in
the computer programmes which he claims to have
authored and which are stated to have been stored in the
software which the defendant snatched from him. The
defendant has no right either to use the computer
programme authored by the plaintiff himself or to make that
work available to any other person whether for
consideration or otherwise. If the defendant uses the work
authored by the plaintiff or provides its copies to any person
without license from the plaintiff, he would be infringing the
copyright of the plaintiff in the work authored by him, since
exclusive rights to do such an act is conferred upon the
owner of the copyright alone. The defendant has no legal
right to transfer the literary work authored by the plaintiff to
be used by any other person either for consideration or
otherwise and any such act on his part would amount to
infringement of the copyright which the plaintiff holds in the
aforesaid works.
CS(OS)No. 1144/2011 Page 7 of 13
7. The plaintiff, therefore, is entitled to injunction
restraining the defendant from infringing the copyright of
the plaintiff in the literary work authored by him including
the computer source Code of the Software Quizpro
Wordpress plugin, by using the same himself,
transferring/assigning it to any other person, making
and/or providing its copies to any person, reproducing it in
any form selling or giving it on rent and distributing,
transmitting, publishing or disclosing the same to any
person or in any other manner.
8. It has come in evidence that a lot of personal
information of the plaintiff, his mother and his cousin was
also stored in the computer which the defendant snatched
from him. This information included vital financial data
relating to bank account of the mother of the plaintiff and
credit card account of his cousin, all of which has potential
of being misused. The computer stolen by the defendant
also contained private messages and personal photographs
of the plaintiffs with his friends and colleagues which he
would not like to share with any outsider including the
defendant. The privacy of the plaintiff has already been
CS(OS)No. 1144/2011 Page 8 of 13
invaded by the defendant snatching the laptop containing
the above-referred private information since he thereby had
access to that private information of the plaintiff. The
defendant has no right to part with that information to any
person and thereby give them an opportunity to invade the
privacy of the plaintiff. The plaintiff, therefore, is entitled to
an injunction restraining the defendant from parting with
the aforesaid information to any person as also from using it
in any manner.
The defendant has no legal right to retain the
laptop of the plaintiff which contained data which is of vital
importance and immense value to him. He is bound in law
to return the aforesaid laptop to the plaintiff without
destroying or erasing the information stored therein.
9. Coming to damages, as noted earlier, the laptop
stolen by the defendant contained vital and important data
as also the computer programme authored by the plaintiff.
The data stored in the laptop stolen by the defendant
included text excel file of 212 e-Pins which can be sold for
Rs.3,600/- per Pin and, therefore, is worth Rs.7,63,200/-.
The plaintiff must have suffered a lot of mental agony and
CS(OS)No. 1144/2011 Page 9 of 13
anxiety on account of theft of the computer programme
authored by him as well as all important data which was
stored in the laptop. He would always remain apprehensive
and live under a constant fear that the data which he had
stored in the laptop may be misused either by the defendant
or any other person who is able to have access to it, causing
substantial financial loss to him besides mental trauma,
agony and anxiety, which he is beyond to suffer in case that
data is used. The anxiety and mental trauma of the plaintiff
on account of his being deprived of the work authored by
him needs to be appreciated taking into consideration the
tremendous effort which he must have made in developing
that computer programme.
10. The right to privacy has been recognized as a
valuable right of an individual which is implicit in his right
to life and liberty which is guaranteed by Article 21 of the
Constitution. The right of privacy does encompass and
afford protection of personal intimacies of family, marriage,
friendship and other matters which are of a private nature.
It is a right to be let alone and everyone is entitled to
safeguard his privacy irrespective of the kind of life he is
CS(OS)No. 1144/2011 Page 10 of 13
leading. No one has a right to peep into the private life of
another person without his consent and if he does so, he
would be violating the right to privacy of the person
concerned and would be liable to pay damages in an action
under the law of torts. The right to privacy has also been
recognized by the European Convention of Human Rights,
Article 8 of which provides that everyone has the right to
respect for his private and family life, his home and his
correspondence. Even a public authority has no right to
interfere with his privacy except in accordance with law and
except to the extent it is necessary in the interest of national
security, public safety and public order.
Monetary or pecuniary compensation is widely
recognized as an appropriate and effective remedy for
infringement of right to privacy, whether by State or by
private individuals.
11. Though Section 43 of the Information Technology
Act, 2000 provides for payment of damages by way of
compensation in case of theft of a computer source Code
used for a computer resource with an intention to cause
damage, for accessing or securing access to a computer or
CS(OS)No. 1144/2011 Page 11 of 13
computer resource as well as destroying, deleting or altering
any information stored in a computer resource, it does not
provide for payment of damages for theft of data other than
the computer source Code used for a computer resource.
Hence, the jurisdiction of a Civil Court is not excluded
under Section 61 of the Act.
ORDER
For the reasons given in the preceding paragraphs, a decree for permanent injunction is passed restraining the defendant from infringing the copyright of the plaintiff in the "literary works" authored by him including the computer source code of the Software Quizpro Wordpress plugin by using the same himself, transferring/assigning it to any other person, making and/or providing its copies to any person, reproducing it in any form, selling or giving it on rent and distributing, transmitting, publishing or disclosing the same to any person or in any other manner. He is also restrained from parting with or disclosing the information of the defendant, his mother and his cousin brother stored in the laptop snatched by him from the plaintiff to any person, as also from using it in any manner whatsoever. A decree CS(OS)No. 1144/2011 Page 12 of 13 for recovery of Lenovo laptop of the plaintiff bearing model number SL4102842 A47 with additional 2 GB RAM and carry case S.No. LRTRVA4 or in the alternative for recovery of Rs.34,100/- is also passed in favour of the plaintiff and against the defendant. This part of the decree would however, be subject to payment of requisite Court Fees on the amount of Rs.34,100/-. A decree for damages amounting to Rs.10 lakh is also passed in favour of the plaintiff and against the defendant. The plaintiff will also be entitled to pendent lite and future damages @ 6% p.a. on the aforesaid amount of Rs.10 lakh, in addition to proportionate costs of the suit.
Decree sheet be drawn accordingly.
(V.K. JAIN) JUDGE SEPTEMBER 05, 2011 'vn'/sn' CS(OS)No. 1144/2011 Page 13 of 13