Microsoft Corporation & Anr. vs Vishal Mehta & Ors. on 7 November, 2013

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Delhi High Court

Microsoft Corporation & Anr. vs Vishal Mehta & Ors. on 7 November, 2013

1.On 29th May 2013, while directing issuance of summons in the suit and granting an interim order restraining the Defendants from using any unlicensed software programmes of Plaintiff No.1 company, the Court also appointed Local Commissioners („LCs‟) to visit the premises of the Defendant No.2, NSI Infinium Global Pvt. Ltd. („NIGPL‟) in three different locations to carry out the directions prayed for in IA No. 9363 of 2013 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 („CPC‟).

2. Mr. Gyan Chand, a Protocol Assistant of this Court, was appointed as LC to visit the premises of NIGPL at Ahmedabad, Mr. Abin Mathew, Advocate, to visit the premises at Mahipalpur, New Delhi and Ms. Tina Gupta, Advocate to visit the premises in Mumbai.

CS (OS) No. 1107 of 2013 Page 1 of 15

3. The reports of the LCs have since been filed. On 2nd September 2013, while perusing the reports of the LCs, Mr. Abin Mathew and Ms. Tina Gupta, it appeared that the directions issued to them by the Court could not be implemented. Both the reports stated that they were refused access to the computer systems installed in the premises visited by them by the officers of NIGPL. At that stage, the report of the third LC, Mr. Gyan Chand, was not on record. The following order was passed on 2nd September 2013: "IA No. 9363 of 2013

1. The Court has on its record the reports dated 1 st July 2013 filed by Mr. Abin Mathew, learned Advocate of this Court, who was appointed as a Local Commissioner („LC‟) to visit the premises of the Defendant, NSI Infinium Global Pvt. Ltd. („NIGPL‟), Mahipalpur, New Delhi-110 037 as well as the report dated 8th July 2013 of Ms. Tina Gupta, learned Advocate of this Court, who was also appointed as the LC to visit the premises of NSI Infinium Global Pvt. Ltd. at Andheri (East), Mumbai- 400 093. Both the reports make troubling reading. It appears that in both the premises, the LCs were refused access to the computer systems installed therein by the representatives of („NIGPL‟).

2. The report of the third LC, Mr. Gyan Chand, an official of this Court, is not on record. He is directed to file his report, if not already done, immediately. Learned counsel for the Plaintiff informs the Court that Mr. Gyan Chand visited the premises of NIGPL in CS (OS) No. 1107 of 2013 Page 2 of 15 Ahmedabad and he too could not execute the commission due to non-

cooperation of the officials of NIGPL.

3. The Court takes very strong exception to the conduct of the Defendants. LCs are the officers of the Court and any interference with the tasks entrusted to them by the Court must be viewed seriously as it tantamounts to interference with the administration of justice.

4. Mr. Arvind Nayyar, learned counsel, who appears on behalf of all the Defendants, profusely apologises and states that this was due to a misunderstanding of the true purport of the order passed by the Court.

5. The Court is not satisfied with the explanation offered by Mr. Nayyar.

6. Accordingly, suo moto notice of contempt is issued to Mr. Vishal Mehta, Defendant No.1., Mr. Chirag Kakkar, Administrative Head and Mr. Sachin Oswal, both of NIGPL at Andheri (East), Mumbai. Mr. Harender Singh Rana, Administrative Manager and Mr. Deepak Gupta, Financial Controller of NIGPL at New Delhi. Notice on behalf of the above persons is accepted by Mr. Arvind Nayyar, Advocate. The above persons will show cause by the next date as to why they should not be proceeded against for the next date for obstructing the administration of justice and frustrating the execution of the order dated 29th May 2013 of this Court. Each of them is permitted to file an affidavit by the next date, explaining his conduct. CS (OS) No. 1107 of 2013 Page 3 of 15 Each of the above persons will remain personally present in Court on the next date.

7. In addition to the above, the Defendants are directed to file an affidavit by the next date through Mr. Vishal Mehta, Defendant No.1, disclosing the following information:

(i) The number of computer systems in each of the premises of NIGPL.

(ii) The number of Microsoft licences that have been purchased by NIGPL.

(iii) The date of purchase of the licences, (copies of the invoices evidencing such purchase will be enclosed with the affidavit).

(iv) The number of computer systems in which the above purchased licenses have been installed.

CS(OS) No.1107 of 2013 & IA No. 9362 of 2013

8. The reports of the LC be supplied to learned counsel for the Defendants on payment of usual charges within three days.

9. Written statement/reply be filed within three weeks. Replication/rejoinder be filed within three weeks thereafter.

10. List on 30th September 2013.

11. Interim order to continue."

4. Pursuant to the above orders, the affidavits of contemnors, i.e., CS (OS) No. 1107 of 2013 Page 4 of 15 Mr. Vishal Mehta, Mr. Deepak Gupta, Mr. Chirag Thakker, Mr. Sachin Oswal and Mr. Harinder Singh Rana have been filed. On 30th September 2013, the following order was passed:

"1. The affidavits of Mr. Deepak Gupta, Mr. Harinder Singh Rana and Mr. Chirag Thakker are on record.

2. Today, in Court, Ms. Swathi Sukumar, has handed over the affidavits of Mr. Sachin Oswal and Mr. Vishal Mehta, copies whereof have been served on learned counsel for the Plaintiffs, who is permitted to file rejoinder to these affidavits before the next date.

3. Ms. Sukumar states that while Mr. Rana, Mr. Gupta and Mr. Mehta are present in Court, Mr. Thakker is not present, since he has left the company. A copy of his resignation letter dated 2 nd September 2013 is enclosed with his affidavit.

4. Considering that Mr. Thakker resigned on the very day the order was passed by the Court on 2nd September 2013, the Court requires Mr. Thakker to remain present in Court on the next date.

5. Ms. Sukumar further assures the Court that Mr. Oswal will also remain present in Court on the next date. The other three, i.e., Mr. Deepak Gupta, Mr. Harinder Singh Rana and Mr. Vishal Mehta, who are present in Court, will remain present as well on the next date.

6. It will be ensured that the report of Mr. Gyan Chand, the Court CS (OS) No. 1107 of 2013 Page 5 of 15 Commissioner, is placed on record by tomorrow i.e. 1st October 2013. The Registry will make copies thereof and supply to learned counsel for both parties within three days thereafter.

7. Written statement be filed within two weeks. Replication thereto, if any, be filed within two weeks thereof.

8. List on 7th November 2013.

IA No. 9362 of 2013 (Order XXXIX Rules 1 and 2 CPC)

9. The order dated 29th May 2013 is made absolute during the pendency of the suit.

10. The application is disposed of.

IA No. 9363 of 2013 (Order XXVI Rule 9 CPC)

11. Since the Court Commissioners have already been appointed by order dated 29th May 2013, this application does not survive.

12. The application is disposed of."

5. The report of third LC, Mr. Gyan Chand, since placed on record, reveals that he too was prevented from carrying out the orders of the Court, when he visited the premises of NIGPL at Ahmedabad.

6. The contemnors are present in Court today. Their affidavits have been considered. The submissions of Ms. Swathi Sukumar, learned counsel CS (OS) No. 1107 of 2013 Page 6 of 15 appearing for the contemnors and of Ms. Shilpa Gupta, learned counsel appearing for the Plaintiffs have been heard.

7. It was first submitted by Ms. Sukumar that none of the contemnors intended to violate the orders of the Court. According to her, what is depicted in the reports of the LCs is a knee jerk reaction of the contemnors and that they did not fully understand the purport of the orders of the Court. It is stated that Mr. Deepak Gupta, Financial Controller and Mr. Harender Singh Rana, Administrative Manager (Operations) of NIGPL in Mahipalpur, New Delhi and Mr. Chirag Thakker and Mr. Sachin Oswal of NIGPL in Mumbai were only awaiting further instructions from Mr. Vishal Mehta, Director of NIGPL at its head quarters. It is stated that in each of the locations, the LCs were requested to wait till the instructions were obtained on how they should proceed further. It is submitted that there was every intention to cooperate in the implementation of the Court‟s directions. With respect to the observations in each of the LC‟s reports that laptops/computer systems were being removed from the premises in their presence, it is submitted that there were clients who had come to the premises of NIGPL with their respective laptop/computer systems and these clients were leaving the premises after finishing their work and that no employee of NIGPL in CS (OS) No. 1107 of 2013 Page 7 of 15 any of these locations had left the premises with the computer systems. It is repeatedly urged that for the kind of business undertaken by NIGPL, it does not use any proprietary software, much less Microsoft Windows („MW‟) or Microsoft Office („MO‟) and, therefore, there was no occasion for NIGPL to obtain licenses for the said software packages for its business. It is stated that the Defendants have filed copies of invoices for the refurbished computers loaded with Microsoft software along with copies of the licenses, after directions were issued by the Court in that regard. It is, however, insisted that NIGPL did not use either MW or MO for its business. Reference is made to certain documents filed by the Defendants to show that there is huge volume of business conducted online, with orders being placed on the portal of NIGPL on a continuous basis with particular reference to 6th June 2013, the date of the visit by the LCs. Therefore, according to the Defendants, this contradicted the statements in the reports of the LCs that computers were either shut down or removed on that day. It is stated that ever since the Court directed the contemnors to appear in person, they have abided by the orders by appearing on each hearing and have filed affidavits, as directed by this Court. It is submitted that this showed that they did not intend to violate any of the orders passed by the Court. CS (OS) No. 1107 of 2013 Page 8 of 15

8. On behalf of the Plaintiffs, it is pointed out by Ms. Shilpa Gupta, learned counsel, that in each of the locations, the Defendants frustrated the task of the LCs. In Mumbai, the LC, Ms. Tina Gupta, was prevented from counting the number of computer systems by Mr. Oswal and Mr. Thakker. One of the employees of NIGPL was seen tampering with the CPU of one of the computers. Ms. Gupta referred to the reports of the LCs, Mr. Abin Mathew and Ms. Tina Gupta which showed that they were prevented from proceeding with the execution of the commission on the pretext of awaiting instructions from Mr. Mehta in Ahmedabad. She submitted that the Defendants, in the meanwhile, made the entire evidence disappear and thus made it pointless for the LCs to proceed with the commission. She also referred to the job profile of the post of Data Analyst/Senior Data Analyst as depicted on NIGPL‟s website. Prior to the LCs‟ visits, one of the requirements for that post was that the candidate should have excellent knowledge of MW and Microsoft Excel. After the visit of the LCs, this has been changed to „excellent knowledge of Open Office‟. It is submitted that if indeed the Defendants were not using MW and MO, there was no need for the above change. According to learned counsel for the Plaintiffs, this was another attempt by the Defendants to tamper with the evidence. CS (OS) No. 1107 of 2013 Page 9 of 15

9. The Court has examined the above contentions. At the outset, the Court would like to observe that the Courts in our country do not have their own enforcement machinery. The LCs appointed by the Court are, in fact, extended arms of the Court. In carrying out the directions issued to them, they act as officers of the Court. The very purpose of Order XXVI Rule 9 CPC is to ensure that the Courts are not left powerless to immediately preserve and protect the evidence that may be crucial for the determination of the issues that may arise in a case and which may disappear if peremptory orders are not passed. The LCs appointed by the Court could be the employees of the Court, or, as is done in a majority of cases, advocates practising before the Court. While in the criminal justice system, coercive methods could be adopted for gathering and preserving evidence through warrants for searches and seizures, the CPC provides, under Order XXVI CPC, a non-coercive process. It is expected that the orders of the civil Court containing specific directions for the execution of commission will be respected by the persons to whom they are addressed.

10. Having carefully examined the affidavits filed by the contemnors before the Court, in the light of the reports of the three LCs, the Court is satisfied that there has been a deliberate attempt by each of the contemnors at the CS (OS) No. 1107 of 2013 Page 10 of 15 three locations of NIGPL to frustrate the orders of the Court.

11. The Court first takes up the affidavit of Mr. Vishal Mehta, who is the Director of NIGPL. He was the person whose instructions were sought by the employees of NIGPL in Delhi and Mumbai as to how they should proceed when they were shown the order dated 29th May 2013 of this Court. According to Mr. Mehta, Mr. Gyan Chand visited the Ahmedabad premises at 12 noon on 6th June 2013. Mr. Mehta was handed over a copy of the Court‟s order at 12:15 p.m. Mr. Mehta asked Mr. Gyan Chand to wait in the conference room since he was awaiting Mr. Mankodi, who usually looked into the legal matters. Mr. Mehta volunteers that this was "the first raid of any kind that my company has encountered and I was not aware of the protocol to be followed, though I was clear that my company was going to cooperate with any order passed by a court of law."

12. However, as the affidavit proceeds to read, Mr. Mehta did everything that was possible to frustrate not only the work of Mr. Gyan Chand, but the work of the other two LCs, who, as Mr. Mehta was aware, had reached the offices of NIGPL in Delhi and Mumbai. If, indeed, he was aware of the purport of the order of the Court and if, indeed, NIGPL was not using any CS (OS) No. 1107 of 2013 Page 11 of 15 proprietary software, including MW and MO, there should have been no difficulty at all for Mr. Mehta to not only permit Mr. Gyan Chand to straightway examine the computer systems in the Ahmedabad office, but also instruct his colleagues likewise in Delhi and Mumbai to proceed to do so. On the other hand, he states in para 7 of his affidavit that Mr. Mankodi arrived at about 45 minutes and apprised "me of the situation and we requested Mr. Gyan Chand to wait till such time."

13. The explanation Mr. Mehta gives in para 8 of his affidavit for making Mr. Gyan Chand wait is that there are around 2,00,000 visitors every day to the company‟s portal, that business is conducted continuously and that "any sudden stoppage of work in the peak business hour would have resulted in thousands of customers not able to access the services." At the same time, it is stated that NIGPL was not using any proprietary software, including MW and MO but only open source software. If this was true, then it should have been possible to apprise the LCs accordingly and also demonstrate right way that fact from the computer systems operating in the premises. This would not have involved any sudden stoppage of the entire work as contended by him. When a speeding truck is waved down by a traffic policeman, it is no defence for the offender to say that he should first be allowed to attend to the CS (OS) No. 1107 of 2013 Page 12 of 15 business for which he is proceeding and answer the policeman later according to his convenience for the violation. The explanation Mr. Mehta gives for not immediately complying with the Court‟s order is not acceptable.

14. Mr. Mehta holds an MS and an MBA. He is stated to have earlier worked in the USA. It is all the more unfortunate that Mr. Mehta did not think it necessary to immediately comply with the Court‟s order. If his statement that NIGPL does not use any proprietary software is true, there is no reason why he did not permit the LCs in Ahmedabad, Delhi and Mumbai to proceed to examine the computer systems. On the other hand, he prevented the LCs from carrying out their tasks and ensured that incriminating evidence was removed.

15. The affidavits of the other contemnors, i.e., Mr. Gupta, Mr. Rana, Mr. Thakker and Mr. Oswal are in the same vein. They offer no mitigating circumstances whatsoever. It is plain that they made the LCs wait on the pretext of obtaining instructions from Mr. Mehta. The LCs witnessed the computer systems in each premises being removed with brazenness despite the contemnors being told about the Court‟s order. The explanation that CS (OS) No. 1107 of 2013 Page 13 of 15 clients who had brought their computer systems into the premises of NIGPL were the ones removing them is unbelievable since in none of the reports of the LCs is there any reference to an explanation of this kind being offered to the LCs by Mr. Gupta and Mr. Rana in Delhi or Mr. Thakker and Mr. Oswal in Mumbai. The LCs watched helplessly when the computer systems were being removed from the premises and they were unable to do anything whatsoever.

16. It may be observed at this juncture that although in its orders appointing LCs, the Court permits them to seek police assistance, in the present case, it would have been futile even if the LCs had sought police assistance as by that time the entire evidence would, in any event, have disappeared. Naturally, therefore, the LCs felt it would be futile for them to proceed with the execution of their respective commissions.

17. There is no doubt that the contemnors have blatantly frustrated the orders of the Court. It is unfortunate that those educated and well placed in society have shown scant respect for law. While such conduct is condemnable, it is the duty of the Court to ensure that potential violators of its orders are deterred. An assurance must be given to the LCs, be they CS (OS) No. 1107 of 2013 Page 14 of 15 members of the bar or employees of the Court, that their work will not be frustrated and that they will be treated with respect and courtesy while discharging their functions as officers of the Court.

18. The Court has no hesitation in concluding that each of the contemnors, i.e., Mr. Vishal Mehta, Mr. Deepak Gupta, Mr. Chirag Thakker, Mr. Sachin Oswal and Mr. Harender Singh Rana have wilfully violated and acted in defiance of the order passed by the Court on 29th May 2013. They are held to have interfered with the administration of justice and accordingly held guilty of contempt of Court.

19. Before proceeding to punish each of the contemnors, who are present in Court today, the Court would grant each of them one more opportunity to file, before the next date, an affidavit limited to the question of punishment.

20. List on 21st November 2013, on which date each of the aforementioned contemnors shall remain personally present.

21. A copy of this order be given dasti to learned counsel for the parties.

S.MURALIDHAR, J NOVEMBER 07, 2013 tp CS (OS) No. 1107 of 2013 Page 15 of 15

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