Gujarat High Court
Sarine Technologies Ltd vs M. Kantilal Exports on 29 January, 2020
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/SCA/2595/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2595 of 2020
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SARINE TECHNOLOGIES LTD
Versus
M. KANTILAL EXPORTS
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Appearance:
MR NEERAJ MALHOTRA, SENIOR ADVOCATE WITH MR
SANDEEP GROVER WITH MR ISHWER UPNEJA WITH MS VARA
GAUR WITH MS HEENA RANA WITH MR DILIP B RANA(691) for
the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 29/01/2020
ORAL ORDER
1. Heard learned senior advocate Shri Neeraj Malhotra appearing with learned advocate Mr. Dilip B. Rana, for the petitioners.
2. The learned senior advocate Mr. Malhotra for the petitioners pointed out that in the case of infringement of copyright, usually the trial court used to grant appointment of commissioner for bringing on record the alleged infringement by way of making local inspection as well as inventory thereto and that fact is not looked into. Even this court as well as in this sort of matter dealt with by the Delhi High Court, the Division Bench has also laid down certain guidelines. Though the petitioners submitted all these details to the learned trial court, more particularly, holding that the issue of copyright is involved but the learned trial court was pleased to issue notice instead of appointing the court commissioner for Page 1 of 5 Downloaded on : Thu Jan 30 04:43:54 IST 2020 C/SCA/2595/2020 ORDER carrying out local inspection as well as inventory as prayed for. The learned senior advocate placed reliance upon the decision laid down in the case of Autodesk Inc and Anr. vs. A.V.T. Shankardas and Anr., reported in 2008 (105) DRJ 188(DB), and more particularly, places reliance upon paragraph 14, which reads thus :
"Coming now to the question of guidelines to be set, we have heard both the counsel for the parties. We are conscious of the fact that it is neither feasible nor practical to lay down guidelines, which would cater to numerous and all the situations that may arise. However, some of the following relevant factors and guidelines are being enumerated which the Court may take into consideration on the question of appointment of a Local Commissioner in software infringement and piracy matters:-
(i) The object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex parte appointment of a Local Commissioner there is likelihood that such evidence may be lost, removed or destroyed;
(ii) Request for ex parte appointment of a Local Commissioner in such matters is usual and in fact is intended to sub serve the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered;
(iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the Page 2 of 5 Downloaded on : Thu Jan 30 04:43:54 IST 2020 C/SCA/2595/2020 ORDER natural and normal course of conduct and practice in trade.
(iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the defendants premises. Any such attempt also inheres in it the possibility of dis-appearance of the pirated software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or investigator is not to be insisted upon as pre condition. A report of private Investigator need not be dis-regarded or rejected simply because of his engagement by the plaintiff.
The information provided by the private Investigator should receive objective evaluation.
(v) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy."
3. This Court is taken through the recitals and allegations levelled in the application as well as in the petition and the present petitioners - plaintiffs apprehended that if notice be issued to the respondents, there appears likelihood of removal of evidence of infringement of copyright, and in that view of the matter, the learned trial court could have issued ex-parte appointment of commissioner. Even otherwise, he has submitted that this is to be done at the cost of the plaintiffs and it would not be in any manner harmful to the respondents
- defendants.
4. This Court has gone through the records and proceedings as well as allegations made therein. Since Page 3 of 5 Downloaded on : Thu Jan 30 04:43:54 IST 2020 C/SCA/2595/2020 ORDER inspection of only one premises as indicated in the application before the learned trial court in prayer (B), is required to be undertaken by way of appointing local commissioner, consequently, therefore, this Court is of the considered opinion to grant the application as prayed for, for appointment of commissioner for local inspection as well as for other purposes as prayed for, in the above premises.
5. In view of the above, learned Additional District Judge, Surat before whom the copyright suit filed by the petitioners is pending is directed to immediately appoint one officer to work as Commissioner. It will be open to the petitioners to send its experts with the Commissioner. For such purpose, the petitioners shall provide the names of its experts. The Commissioner shall inspect the computer systems of the respondents Nos.1 to 6 at the above-said premises, in particular with regard to alleged pirated software of the petitioners. The Commissioner shall also inspect hard disks of the computers and Compact Disks and other connected equipments, if found at the above-said premises of respondents Nos.1 to 6, and shall make inventory thereof. It will be open to the Commissioner to take help of the experts while making the inspection. The Commissioner on completion of the inspection at the above-said premises shall make report and submit it to this Court. It will be open to the Commissioner to takeout prints of the image from the computers during inspection or the particulars of the contents of the alleged pirated software. If such prints are taken out, reference thereof shall be made in the report. The respondents Nos.1 to 6 shall cooperate with the Commissioner in carrying out the inspection as per this order.
Page 4 of 5 Downloaded on : Thu Jan 30 04:43:54 IST 2020 C/SCA/2595/2020 ORDER6. Mr. Fouzan Soniwala, advocate (mobile no. 91+9998441924) is appointed as the local commissioner for carrying out the inspection. The petitioners-plaintiffs shall deposit Rs.1 Lac for remuneration payable to the commissioner at the first instance before this Court and the commissioner shall carry out the local inspection in terms of the application as prayed for, within three days and shall make report within a period of 15 days, from the date of issuance of the commission to him and seek police assistance if required. The learned trial court shall act and facilitate in carrying out the purpose of Exh.-6. The local commissioner shall prepare an on the spot proceedings and record the names of all the parties' presence. The respondents Nos.1 to 6 shall cooperate with the Commissioner in carrying out the inspection as per this order.
7. It will be open for the petitioners-plaintiffs to send its counsel and experts with the commissioner.
8. Issue Notice for final disposal making it returnable on 3rd March, 2020.
Direct service today is permitted.
(R.P.DHOLARIA, J) Dolly Page 5 of 5 Downloaded on : Thu Jan 30 04:43:54 IST 2020