Document Fragment View

Matching Fragments

46.Inasmuch as in the agreement it is clearly stated that Sundaram B.N.P.Paribas Home Finance Limited has been entrusted the Software with a specific undertaking not to give it to any third party without the permission from KEN-SOFT, the alleged conduct is stated to be cheating and committing breach of trust. It is also stated that while the officials of Sundaram B.N.P.Paribas Home Finance Limited on the one hand were giving assurance that they will take full care of the said Software, on the other hand, they were tampering and hacking the software thereby cheating the complainant. It is also complained that for the purpose of protecting the intellectual property right in respect of the software created by the complainant, a joint meeting was sought for between the officials of the complainant and the Sundaram B.N.P.Paribas Home Finance Limited for which it has not given its approval for co-ordination and the explanation required for the same. Without meeting the persons, it is complained that the Sundaram B.N.P.Paribas Home Finance Limited has sent list of data required to be migrated and it was observed that there was a discrepancy between the list and the list which they sent in August. It is stated that Dr.D.B.Phatak, Professor IIT, Mumbai along with the officials of the complainant have met the Sundaram B.N.P.Paribas Home Finance Limited in which the expert has given opinion that intellectual property right of KEN-SOFT must be honoured and proper method for data migration should be adopted which was stated to be accepted by the Sundaram B.N.P.Paribas Home Finance Limited. The further complaint is that on the one hand, Sundaram B.N.P.Paribas Home Finance Limited has been giving order for data migration and on the other hand, they were accessing the complainant licenced software hacking and making changes in it and using it and therefore, it amounts to cheating. It is further stated that when the complainant has informed Sundaram B.N.P.Paribas Home Finance Limited to give connectivity by email or to send CD back up, it was refused on the security reason and therefore, a request was made to disconnect test server from network and give connectivity by modem to avoid the security problem and that was also refused. It is stated in the complaint that when the Engineer of the complainant, Shailesh Patlekar was sent to Sundaram B.N.P.Paribas Home Finance Limited, it was found by him that changes were made in KEN-HFS Software and new external code was inserted. It was observed by him that software scheme was changed and external programme was loaded on it. It is stated that the manager of the complainant has requested to remove the external programme to avoid any error in future and in spite of the Sundaram B.N.P.Paribas Home Finance Limited was informed about it, no efforts taken to remove the external programme. It is stated that on 26.12.2008 a meeting was conducted in the office of Sundaram Finance along with Dr.Pathak, Mr.M.Acharya, Mr.Nitin Palani, Ms.V.Janaki, Mr.Swami Nathan etc., in which Dr.Pathak has mentioned that there has been a clear tampering of KEN-HFS software and it is stated that at that time, Mr.Acharya has accepted the loading of the external programme in the said software and the software was changed without assigning any reason. It is stated that the Sundaram B.N.P.Paribas Home Finance Limited has accepted that it will show the new software but never kept up the promise and the repeated request made by the complainant to remove the new software was not heeded to. It is stated that Dr.Pathak in his mail sent to Mr.Acharya, on 04.3.2009 that there has been violation source code and schema. It is thereafter, stated that Sundaram B.N.P.Paribas Home Finance Limited has failed to give connectivity and CD backup in order to avoid evidence to come to the hands of the complainant regarding hacking of the software belonging to the complainant. It is also specifically stated that the software was given for 75 Oracle Name User ASF licence but it transpired that about 300 oracle name users from back-up CD and by using more oracle name user and therefore, it is alleged that the petitioners have cheated the complainant using its KEN-HSF version 8.x software by copying it. It is stated that when the matter was sent to IIT, Mumbai for opinion, Dr.Sarda gave a report on 21.06.2009 stating that hacking and violation of various aspects was done. It is also stated by another Scientist, Dr.Jain of IRCC & Intellectual Property Cell, IIT, Mumbai, after considering the entire records in the report that IPR of KEN-HFS belonging to KEN Soft Company which is valuable and therefore, the claim made by the Sundaram company is wrong. Therefore, the complaint is that the Sundaram B.N.P.Paribas Home Finance Limited has misutilised the software belonging to the complainant by cheating and committing breach of trust causing damages to the company by deception preparing IPR stealing plan transferring to third party company and changing the software thereby committing breach of trust. It was based on the above said complaint given in the form of statement by the fifth respondent, the first information report came to be registered by the third respondent, which is challenged in W.P.No.2922 of 2011.

"The information requested is furnished below point wise:-
1.The Report issued by Prof.K.Jain and Prof.R.M.Sonar is based on their individual professional opinion as faculty members of the Institute. As per our Institute rules, faculty members can take up consultancy and sponsored projects for several industries, based on their professional expertise. The Institute does not endorse or deny the opinion of the individual faculty.
2.IIT Bombay had taken up a consultancy project which had been given to Prof.R.M.Sonar in 2009-10 by Kensoft Infotech Ltd. and this report is the result of that consultancy project. The consultancy fee was paid to IIT Bombay for the said project.
3.We have had two consultancy projects with Kensoft Infotech and details are given in Annexure-1.
4.IIT Bombay has not appraised or certified Kensoft Infotech Limited. If any such report has been provided by IITB faculty as a part of a consultancy project, then such report is based on the professional opinion/expertise of the faculty members. The Institute does not endorse or deny the opinion of the individual faculty. A response from Prof.N.K.Sarda is enclosed as Annexure-2.
5.Please refer annexure 1 for information on projects given by Kensoft Infotech Pvt. Ltd. to IIT Bombay.

62.Even in the plaint filed by the fifth respondent in the Madras High Court in C.S.No.270 of 2009, it is not as if the fifth respondent has not stated anything about the offence stated to have been committed by the petitioners. The fifth respondent in the plaint has specifically stated as follows:

"Thereby, providing third party access to KEN_HFS software or involving in altering/tampering of source code amounts to copyright infringement and breach of confidentiality. The plaintiff came to know subsequently that defendant had sought to prima-facie infringe the copyright vesting in KEN_HFS version 8 on Oracle 9i. The complete access of KEN_HFS was given to the 2nd defendant by 1st defendant on servers which were in fact controlled by the 2nd defendant. Upon becoming aware of such infringement and tampering of source code by the first defendant in collusion with the 2nd defendant, the plaintiff bona fide sought expert opinion from one of the foremost technical institutions in the country, the reputed Indian Institute of Technology, IIT Bombay. The expert report from the Computer Science and Engineering Dept IIT Bombay, confirmed the outright infringement by the 1st defendant by tampering with KEN_HFS source code, insertion of external source code, alterations tampering of schema and copying and reverse engineering of KEN_HFS. Such infringement was obvious from the conspicuous similarity between source code items column names, objects etc occurring in the plaintiff's proprietary source code amounting to several thousand instances of copying".