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8.The applicant/plaintiff in support of the two original applications has filed a common affidavit. It was stated that the plaintiff is a Software company engaged in development of application software for multinational corporations, financial institutions and the Government since 1992. It is certified under ISO 9001:2000. It is also a partner of ORACLE Corp, the global software giant, for over a decade. The applicant has many clientele including leading banks and financial institutions. The applicant's flagship product is an enterprise level housing financial software named as KEN-HFS and it is a housing finance software used by companies engaged in business of housing finance/home loans. It was originally developed by the applicant/plaintiff in the year 1992/94 on a dBase/clipper platform for the use at Bank of India. The said software has been in existence for more than 14 years. This software has also been licensed to the Bank of India in the year 1994 and GIC Housing Finance in the year 1996. It has been continuously upgraded in tune of technological developments. The said software is supplied in an executable format with no source code rights and with no rights to sell or alter or give to any third party. Some customarization on its software will be done by Kensoft for a customer based on changing business and user requirements. All design/documentation and source code are proprietary to Kensoft and not part of deliverables. Any form of copying/reverse engineering or third party access is prohibited. The copyright and confidential information of the applicant is asserted on the sign of screen of KEN-HFS and is accepted by the user before entering into and using the software.

10.It was further stated that the applicant came to know subsequently that the respondent had sought to prima facie infringe the copyright vesting in KEN_HFS version 8 on Oracle 9i and the complete access of KEN_HFS was given to the second respondent by the first respondent on servers which were in fact controlled by the second respondent. On being aware of such infringement and tampering of source code by the first respondent in collusion with the second respondent, the applicant bona fide sought an expert opinion. The expert report from the IIT, Mumbai, Computer Science and Engineering Department, confirmed the outright infringement by the first respondent. Such infringement was obvious from the conspicuous similarity between source code items, column names, object occurring in the applicant's proprietary source code amounting to several thousand instances of copying. After the release of KEN-HFS version 8 on Oracle 9i by the applicant, the applicant and the first respondent entered into various agreements, dated 20.3.2006, 7.3.2007, 28.3.2008 for the maintenance and usage terms of KEN_HFS version 8. These agreements enumerated the usage of the said software. Since the applicant is the first owner of the source code, any unauthorised use of the said software is prohibited under the Copyright Act. The applicant has only provided a mere licence to the respondents to utilize the product. The deliverables from applicant to the respondents are only the executables. The nature of the licence did not give any right over intellectual property of the software by the respondents.

14.It was further stated that the action of the respondent of committing torts of trespass and misfeasance in the intellectual property rights vested in the applicant is deliberate and with dishonest intention and they should be restrained by an order of this court. The copyrighted products of the applicant were handed over to the first respondent in utmost confidence and it is a valuable trade secret, but the action of the first respondent providing the access to the second respondent was unlawful and without consent, permission and licence by the applicant. The respondents are liable for the acts of torts and misfeasance committed deliberately with dishonest intention and motive. In the agreement, dated 28.3.2008, it was specifically agreed that no third party access of copying or reverse engineering of the application of the software will be done. The first respondent has conspired with the second respondent with mala fide intention to crack and hack the source code of the applicant's original software.

20.The second respondent has no connection whatsoever for the alleged activities mentioned by the applicant in paragraph 28 of his affidavit. More than one occasion, the first respondent has pointed out that the new software belonged to M/s.Sundaram Finance Limited. There was no copyright infringement. There was also no modification of source code or software. The allegation that the first respondent had tampered with the schema and the source code of the software and has transferred confidential information for substantial imitation and adaptation of the software was also denied. It was further stated that the new software to which first respondent had migrated to belongs to Sundaram Finance Ltd. developed through its Software division, Sundaram Infotech Solutions (SIS). Sundaram Finance Ltd had its own software product providing solutions to non banking financial companies for more than a decade and had customize its software to cater to Home Finance companies. The second respondent is an independent company having no business transaction in any manner with the first respondent company. Therefore, the allegation that the first and second respondents have conspired to crack and hack the source code of the software supplied by the applicant was denied.