Delhi High Court
Sap Ag And Anr. vs Somaya Kanti Dutta And Anr. on 25 February, 2008
Equivalent citations: MIPR2008(2)125, 2008(36)PTC598(DEL)
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This is a suit filed for, inter alia, a decree of permanent injunction, infringement of copyright, delivery up and rendition of accounts , and to restrain the defendants from illegally using the software products of the plaintiffs. Summons of the suit were issued and duly served upon the defendants. Nobody appeared on behalf of the defendants and on 17.09.2007, the defendants were directed to be proceeded against ex parte. The plaintiff was directed to lead its ex parte evidence by way of filing evidence affidavit(s).
2. The plaintiff has filed the affidavit of Mr Ravi Lal Thapa (PW 1), by way of evidence. The said Mr. Ravi Lal Thapa is the constituted Attorney of the plaintiff company. The documents have also been exhibited as PW-1/1 to PW- 1/8.
3. As stated in the plaint the plaintiff No. 1 is a company incorporated in Germany and is involved in developing enterprise scale solutions. The Plaintiff No. 2 is the Indian subsidiary of the plaintiff No. 1. The defendant No. 2 is alleged to be engaged in the business of providing Enterprise Resource Planning and eCRM services to various clients including providing training in ERP software. It is also alleged that the defendant No. 2 is running a BPO service and managing its business from fourth floor, Garia Ghat Shopping Complex, 153, Rashbehari Evenue, Kolkatta. The defendant No. 1 is the Managing Director of the defendant No. 2.
4. As averred in the plaint, the plaintiff No. 1 had, in the 1970's developed the SAP -RF1 computer software which was an automatic accounting and transaction processing programme, which was the first enterprise resource planning solution that enabled organizations in the deployment of their resources in the most efficient way for achieving maximum productivity. In 1992 the plaintiff No. 1 introduced SAP R/3. The software programmes of plaintiff are user specific and not available off the shelf.
5. The software products are purpose specific and tailored as per the requirement of its clients. The license agreements are also purpose specific and, therefore, cannot be used by any other person / organization without a valid license from the plaintiff except for the purpose for which it is licensed. Hence, there are separate licenses for each user. Being a copyright protected product, the permission / license has to be taken from the plaintiff even for using the software for educational and training purposes. Consequently, the plaintiff has partnerships with specific entities for this educational and training purpose. And, therefore, without the plaintiffs' authorization or license, no education or training can be imparted by any person on the plaintiffs' software.
6. As per averments contained in the plaint, the plaintiff No. 1 is the sole and whole owner of copyrights in respect of the software programmes developed by it. The computer programmes fall within the meaning of Section 2(ffc) of the Indian Copyright Act, 1957 and is also included in the definition of literary work as per Section 2(o) of the said Act. According to the plaintiff, the defendant has been training students using the software programmes like SAP R/3, ABAP/4 etc of the plaintiff as would be apparent from the material Exhibits PW-1/5 and PW-1/6 placed on record which has been taken from the website of the defendant No. 2.
7. The allegations made in the plaint have been supported by the affidavit evidence of Mr. Ravi Lal Thapa (PW-1) as well as the documents exhibited as Ex-PW-1/1 to Ex-PW-1/8 and the same have gone uncontroverter. Therefore, being the registered owner of the copyrights in the said software programmes, or the said software programmes, the plaintiffs are entitled to a decree of permanent injunction in their favor and against the defendants who have been using the said software without any authority or valid license from the plaintiffs.
8. Accordingly, the suit is decreed in terms of prayers contained in paragraphs 25 (a), (b) and ( b ), [i.e., both the sub-paragraphs numbered as (b)].
9. Insofar as the prayer for rendition of accounts in paragraph 25 (c) of the plaint is concerned, since the defendants have failed and/or neglected to appear in these proceedings, it would not be possible to even make an estimate of the illegal profits earned by the defendants and the actual damage caused to the plaintiffs. However, in such circumstances, the court is not powerless and can award punitive damages as has been held in several decisions including Time Incorporated v. Lokesh Srivastava and Anr. 2005 (30) PTC 3 (Del).
10. Thus, the plaintiff is also entitled to a decree of punitive damages against the defendants which I quantify at Rs 2,50,000/-. The suit is decreed as indicated above with costs. The formal decree be drawn up.