Microsoft Corporation and Another vs Dhiren Gopal and Others

Madan B. Lokur, J.

CM No. 18177/2009 (Exemption)

Allowed, subject to all just exceptions.

CM stands disposed of.

FAO (OS) No. 624/2009 and CM No. 18176/2009 (Stay)

Issue notice to the Respondents.

The Appellants are aggrieved by an order dated 7th December, 2009 passed by a learned Single Judge in CS (OS) No. 2027/2009.

The broad facts of the case are that according to the Appellants it has a copyright over several software programmes and it is a worldwide market leader in sales of software programmes. The allegation against the Respondents (carrying on business outside Delhi) is that they are using pirated or unlicenced software over which the Appellants have a copyright. In view of this, the Appellants submitted before the learned Single Judge that the Respondents should be restrained from using its pirated or unlicenced software.

In support of its case, the Appellants relied upon reports received from two private investigators to come to a conclusion that the Respondents had a large number of computers in their organization and most of them (if not all) were using the pirated or unlicenced software. The Appellants also submitted before the learned Single Judge that in a large number of cases filed by the Appellants on similar facts, an injunction against the use of pirated or unlicenced software was granted and a local commissioner appointed to take possession of the offending computers by various Benches of this Court and, therefore, there was no reason why an injunction and the appointment of a local commissioner ought not to be ordered in the present case also.

The learned Single Judge recorded the statement of the investigators under Order X of the CPC and thereafter concluded that they had no knowledge of piracy or copying of software and were not experts in the field. It was further held that the reports of the investigators were tainted inasmuch as they were apparently employees of the law firm which had filed the suit on behalf of the Appellants.

The learned Single Judge discussed the case law with regard to the appropriate forum in which the suit could have been filed. This was necessitated by the fact that all the Defendants in the suit (Respondents before us) are carrying on business outside Delhi. The learned Single Judge noted the provisions of Section 62(2) of the Copyright Act, 1957 and also noted that there was a divergence of opinion between two Division Bench decisions of this Court, namely, Indian Performing Right Society Limited v. Sanjay Dalia and Anr. 2009 (39) PTC (Del) (DB) and Horlicks Ltd. and Another Vs. Heinz India (Pvt.) Limited, . After noticing the divergence of views, the learned Single Judge tentatively came to the conclusion that the suit could be filed in this Court.

It may be mentioned at this stage that Learned Counsel for the Appellants pointed out to us that the decision of the Division Bench in Indian Performing Right Society Limited has since been stayed by the Supreme Court in SLP (C) No. 980-981/2009 by an order dated 27th January, 2009. The law as it stands today is, therefore, what is laid down in Horlicks Limited which categorically states that this Court will have jurisdiction to entertain the suit, such as the one filed by the Appellants.

The learned Single Judge, according to Learned Counsel for the Appellants, made certain observations in the impugned order which are wholly unwarranted but nevertheless granted the injunction prayed for. He submits that the operation of the impugned order deserves to be stayed and the terms of the injunction granted be modified.

After hearing Learned Counsel for the Appellants and going through the record, we are of the prima facie view that the operation of the impugned order deserves to be stayed particularly in view of some observations made by the learned Single Judge.

Insofar as the injunction prayed for by the Appellants is concerned, we are of the opinion that the terms, as granted by the learned Single Judge, deserve to be suitably modified.

Accordingly, we grant the injunction prayed for by the Appellants to the extent that the Respondents and its principal officers, directors, agents, franchisees, servants and all others acting for and on behalf of the Respondents shall not reproduce/store/install and/or use pirated/ unlicensed software of the Appellants until the next date of hearing.

To determine whether the Respondents are in fact using the unlicensed or pirated software of the Appellants, an inventory of the software used by the Respondents in its computers may be made by the Appellants. For this purpose, the Appellants will be entitled to take upto three of its experts for making the inventory, which will be made in the presence of an authorized officer of the Respondents and if the Respondents insist, in the presence of a technical expert of the Respondents.

The Appellants will be entitled to take Local Commissioners for carrying out the commission. The Local Commissioners will be paid a sum of Rs. 25,000/- each per day plus to and fro airfare and other incidental and out-of-pocket expenses. If the Local Commissioners are required to stay overnight, their boarding and lodging will be made at a reasonable place in the city and the expenses shall be a borne entirely by the Appellants.

If the Respondents so desire, they may make a mirror image of the hard disc of their computers for future use.

In the event it becomes necessary, the Local Commissioners will be entitled to take police assistance and we expect the local police to render all assistance to the Local Commissioners in carrying out the commission in a peaceful manner.

It is made clear that the Local Commissioners (mentioned below) are entitled to visit the following premises of the Respondents without notice:

S. No.

Local Commissioner

Premises

1.

Mr. Akash Deep, Advocate 607, Kirti Apartments, MayurVihar, Phase-I Extn., Delhi-110091.

Mobile: 9873463912 No. 2, Timber Yard Layout, Mysore Road, Bangalore-560 026.

2.

Mr. VishalGarg, Advocate 78, Loknayak Apartments, Sector-9, Rohini, Delhi-110085. Mobile: 9811137369

No. 16/A, Miller Tank Bund Road, Behind AmbedkarBhavan, Vasanthnagar, Bangalore-560 052

3.

Mr. HaroonAsrar, Advocate JE/26, 2nd Floor, Gupta Colony, MalviyaNagar, New Delhi-110017. Mobile: 9999876809

83-88/1, Bangalore, HejjalaMysore Road, RamanagaramTaluk, Bangalore-562 109.