Delhi High Court
The Foundry Vision Mongers Ltd & Anr vs Raj Shekhar & Anr on 30 August, 2018
Author: J.R. Midha
Bench: J.R. Midha
$~ O-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 30th August, 2018
+ CS(COMM) 415/2018
THE FOUNDRY VISION MONGERS LTD & ANR ..... Plaintiffs
Through: Ms. Aarshia Behl, Adv.
versus
RAJ SHEKHAR & ANR ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. Plaintiff No.1 is a software developer for Visual effects (VFX) and Plaintiff No.2 is a software developer for 3D computer graphics and special effects. Plaintiff No.1 is the copyright owner of softwares NUKE X, MARI, KATANA and HIERO whereas plaintiff No.2 is the copyright owner of software FUSION.
2. In October, 2012, the plaintiffs received information through its market sources that the defendants were using considerable number of NUKE and FUSION softwares on their computer systems without any license and the defendants through various websites, invited resumes of people proficient in the working of the plaintiffs' software NUKE and FUSION. The plaintiffs deputed an investigator, Mr. Jatin Batra to make enquiries. The investigation revealed that about 15 persons were working on NUKE software and about 10 persons were working on FUSION software in CS(COMM) 415/2018 Page 1 of 5 defendant No.2 company.
3. On 20th December, 2012, this Court granted ex-parte ad interim injunction against the defendants and appointed a Local Commissioner to make an inventory and seize the computer systems of the defendants found installed with unlicensed/unauthorized plaintiffs' software.
4. On 29th December, 2012, the Local Commissioner conducted the Commission in the presence of the director of defendant No.2. The Local Commissioner found 11 unlicensed FUSION softwares, with defendant No.2 which were seized and returned to defendant No.2 on superdari.
5. Mr. Sasidhar, director of defendant No.2 informed the Local Commissioner that he received an email dated 24th December, 2012 informing him in advance about the Local Commissioner appointed by this Court. The director of defendant No.2 handed over the copy of email dated 24th December, 2012 to the Local Commissioner who filed the same along with his report as Annexure I.
6. Vide order dated 11th February, 2014, this Court observed that the aforesaid e-mail interferes with the administration of justice and constitutes a criminal contempt. This Court directed DCP-Cyber Cell to conduct an inquiry and submit a report to the Court within six weeks. Relevant portion of the order dated 11th February, 2014 is reproduced hereunder:-
" 6. The learned counsel for the plaintiff has pointed out that an e-mail had been sent to the defendant No.2 by somebody a copy of which is attached as Annexure-I. The registry was directed to conduct an enquiry and place a report before this court with regard to the source from which the email emanated and the person to whom this email address belonged. It has been reported by the Registry that there is no advocate, as per the list available with them, who has sent the said email in question.CS(COMM) 415/2018 Page 2 of 5
7. I am prima facie satisfied, from a perusal of the report of the Registry as well as the email, that the contents of the email tantamount to interference with the administration of justice and thus constitute a criminal contempt. However, before any further action is initiated against the person or the source who is purported to have sent this email, it will be necessary to fix the identification of the source and the person to whom the email address belonged. Under these circumstances, I consider it just and proper that a communication in this regard for conducting an enquiry be sent to the DCP, Cyber Cell, Delhi to intimate this court regarding the ownership and source of the email in question. Necessary communication be sent by the Registry to the DCP, Cyber Cell, Delhi along with the photocopy of the email indicating that the person to whom the email received by the defendant and furnish a report.
8. The aforesaid report shall be furnished to this court within six weeks from the date of the receipt of the communication by the DCP, Cyber Cell, Delhi. It is made clear that in case the report is not furnished within the stipulated time, the DCP, Cyber Cell shall remain personally present in the court on the next date of hearing."
7. The defendants did not appear on 11th February, 2014 and were proceeded ex parte. The defendants filed I.A. 19043/2014 under Order IX Rule 7 of the Code of Civil Procedure which was dismissed on 28 th August, 2018. During the course of hearing dated 28th August, 2018, the plaintiffs gave up the claim against the defendant No.1 who was deleted from the array of the parties.
8. The plaintiffs has led the ex-parte evidence by examining Mr. Vishal Ahuja as PW1. PW1 reiterated the averments made in the plaint. PW-1 proved certified copies of the copyright registration certificate of plaintiff No.1's software, NUKE as Ex.PW3 (colly); certified copies of the copyright registration certificate of plaintiff No.2's software, FUSION as Ex.PW4 CS(COMM) 415/2018 Page 3 of 5 (OSR); printouts from websites, through which defendants sought resume from people having expertise in plaintiff's software, NUKE and FUSION as Ex.PW5 (colly); report of the local commissioner as EX.PW6 (colly); and price list of plaintiffs' software as Ex.PW7 (colly).
9. The plaintiff seeks permanent injunction against defendant No.2 and damages/legal cost of Rs.22,41,300/-. The breakup of the amount being claimed by the plaintiff is under:-
(i) Cost of 11 unlicensed FUSION softwares @ Rs.1,30,000/- per licence - Rs.14,30,000/-.
(ii) Court fee paid - Rs.86,300/-.
(iii) Fee of Local Commissioner - Rs.75,000/-
(iv) Expenses incurred on the Local Commissioner proceedings
including the fees of technical experts, air tickets and stay - Rs.2,50,000/-.
(v) Counsel's fee - Rs.4,00,000/-.
10. This Court is satisfied the plaintiffs are entitled to the relief of permanent injunction as well as damages against defendant No.2 who was using 11 FUSION softwares without any licence.
11. In the facts and circumstances of this case, the suit is decreed and decree of permanent injunction is passed against defendant No.2 and defendant No.2, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf, are restrained from directly or indirectly reproducing/storing/ installing and/or using pirated/unlicensed software of the plaintiffs; and infringing copyright in the plaintiffs' computer program/software titles. Considering the cost of the 11 softwares and the damages/cost incurred by the plaintiff, a decree of CS(COMM) 415/2018 Page 4 of 5 Rs.20,00,000/- is passed in favour of the plaintiffs and against the defendant No.2.
12. With respect to the inquiry mentioned in para 6 above, Learned Counsel for the plaintiff does not press for an inquiry. Learned Counsel however submits that the practice directions be framed to prevent such occurrences in future and he has valuable suggestions in this regard. Since the suit is being disposed off today, the inquiry initiated by this Court is closed.
13. With respect to the plaintiff's suggestions for the framing practice directions, this Court is of the view that it would be appropriate to invite the suggestions from the Bench as well as the Bar and thereafter, consider issuing necessary practice directions. This Court is further of the view that it would be appropriate to list this matter before the Judge In-charge (Original Side) to consider issuing the practice directions.
14. List before the Judge In-charge (Original Side) on 17th September, 2018.
15. Dasti.
AUGUST 30, 2018 J.R.MIDHA, J.
ak
CS(COMM) 415/2018 Page 5 of 5