Bry Air India (P) Ltd. And Anr. vs Western Engineering Co.
1999 Latest Caselaw 221 Del

JUDGMENT

M.K. Sharma, J.

1. By this order, I propose to dispose of I.A.No. 14133/1992 wherein the plaintiffs have sought for an interim temporary injunction seeking for restraining the defendants, their servants and agents from divulging or making known directly or indirectly the know-how design and technology of dehumidifier of the plaintiffs to any third party or person or make use of the same either alone or jointly and also the application, I.A.No. 4566/1996, filed by the defendant.

2. This Court by order dated 14.8.1992 while issuing summons and notices issued an ex parte ad interim temporary injunction restraining the defendant from copying the drawings of the plaintiffs with respect to dehumidifiers. The defendant appeared in the suit and contested the matter and also filed an application for vacation of the interim injunction granted by this Court. The aforesaid application filed by the defendant under Order 39, Rule 4, CPC was registered as I.A. No. 14133 / 1992. The said application as also the application filed by the plaintiff under Order 39, Rules 1 & 2, CPC being I.A. No. 4566/1996 are being disposed of by me by this common order.

3. The plaintiff's instituted the present suit in this Court contending, inter alia, that the Bry Air Inc., USA is the proprietor of the copyright in several engineering drawings relating to dehumidifiers. It is stated that plaintiff No. 2 started his business in India in 1977 representing the said Company of the USA and started manufacturing of the said dehumidifiers in India with technical know-how of Bry Air Inc., USA. It is stated that plaintiff No. 1 is now the proprietor of copyright of the drawings' of the said dehumidifiers which are original artistic works within the meaning of the Copyright Act. It is alleged that defendant has infringed the aforesaid copyright by three-dimensionally reproducing the drawings through the manufacture of the dehumidifier. Accordingly, the present suit was instituted along with which an application under Order 39, Rules 1 & 2 was filed on which the aforesaid ex parte ad interim injunction was granted.

4. I have heard Mr. Praveen Anand, Counsel appearing for the plaintiffs and Mr. Ajay Sahni, Counsel for the defendant.

5. Mr. Praveen Anand, Counsel appearing for the plaintiffs submitted that the plaintiffs are the owners of copyright of the drawings of dehumidifiers in issue by virtue of assignments from Bry Air Inc., USA and the said Assignment Deed under which assignment was made in favour of the plaintiffs is on record dated 3rd January, 1990. He submitted mat by virtue of the aforesaid assignment, the plaintiffs have become the proprietors of the drawings which are protected under the Copyright Act and the defendant by copying the plaintiff's machine has infringed the copyright and thus, the plaintiffs are entitled to have an order making the injunction passed by this Court absolute. He further submitted that the plaintiff had occasion to deal with the defendant in the course of their trading on dehumidifier and passed on valuable information to the defendant which the defendant has mis-utilised and also breached the confidentiality, and has sought to pass on the drawings of the plaintiffs as that of the defendant.

6. Mr. Ajay Sahni Counsel appearing for the defendant, on the other hand, submitted that the plaintiffs are neither the owner of the copy right of the drawings of dehumidifier in issue for there is no valid assignment in favour of the plaintiffs nor the actual proprietor to the copyright is a party in the present proceedings and, therefore, there being no valid assignment in favour of the plaintiffs of the drawings, there cannot be any allegation of infringement in the present case. He further submitted that the plaintiffs have not filed any artistic drawings till date despite specific objection taken by the defendant in respect of the same. It is also stated that the plaintiffs also failed to file the alleged joint venture collaboration agreement between the plaintiff and Bry Air Inc., USA and thus, the plaintiff No. 1 could not have become the owner of the copyright in the alleged artistic drawings and, therefore, no injunction could be granted in favour of plaintiffs.

7. Mr. Ajay Sahni further submitted that no confidential information was ever passed on to the defendant and that the documents which have been filed by the plaintiffs in support of their allegation that confidential information has been breached indicates that the said technical data was freely floated by the plaintiffs to other third parties also who were bidding for the said project along with the defendant. The information supplied by the plaintiffs to the defendant cannot be said to be of any confidential nature in view of the aforesaid facts and, therefore, the allegation is baseless. He further submitted that the dehumidifiers of the plaintiffs and of the defendant as would clearly and vividly appear from the documents placed on record would conclusively establish that the two dehumidifiers are not common and similar to each other and the same cannot be said to be a three dimensional reproduction of the artistic work of the plaintiffs in the light of Section 52(1)(w) of the Copyright Act, 1957.

8. In the light of the aforesaid submission, let me appreciate the rival contention. It is true that in the plaint, the plaintiffs stated that the copyright of the drawings of the dehumidifiers in issue are owned by M/s. Bry Air Inc., USA, but, no statement has been made that there was any Assignment Deed in favour of the plaintiffs by the said Company in respect of the copyright of the said drawings. However, on the objections taken by the defendant in its written statement, a Deed of Assignment was placed on record which is dated 3rd January, 1990. The defendant also took an objection as against the said Deed of Assignment dated 3rd January, 1990 contending, inter alia, that the said Deed of Assignment is forged and fabricated document, and that even otherwise the same does not create any valid assignment in favour of the plaintiffs. The plaintiffs filed a Supplementary Assignment Deed which, of course, was not taken on record in view of the order passed by this Court. The allegation of the defendant is that the said Assignment Deed is forged and fabricated document. The aforesaid issue would require detailed investigation and comparison of the signatures in accordance with the provisions of the Evidence Act The said issue, therefore, is required to be investigated at a later stage. Let me, however, consider the other objection of the defendant with regard to the Assignment Deed.

9. Sections 18 and 19 of the Copyright Act provide the procedure relating to assignment, transmission or relinquishment of copyright. The owner of a copyright in an existing work may assign in writing to any person the copyright in the works which is to be signed by the assignor or his duly authorised agent. Since the copyright consists of a bundle of rights, the owner may assign the whole of these rights or only some of them and, therefore, an assignment may be general or may be subject to limitation. The Deed of Assignment filed by the plaintiffs is on record. The Deed of Assignment is ex facie an incomplete document. Although in the recital it is stated that the assignor has assigned all rights and title to the copyright in the Engineering drawings for models of dehumidifier as set out in the Deed, none of such rights etc., is specified in the Deed. The Deed also recites that the document is executed in presence of the witnesses. Neither the names of the witnesses are disclosed, nor their signatures appear in the Deed. The plaintiffs have also not put on record the drawings in respect of which assignment is created. Thus prima facie, no reliance could be placed in such an Assignment Deed, which is incomplete. In absence of the drawing also it cannot be said that the dehumidifier of the plaintiffs is protected in terms of the Assignment Deed.

10. The plaintiffs have sought for injunction on the ground that there is infringement of the copyright of the plaintiffs by the defendant and the defendant had adopted the drawings of the plaintiff by making breach of confidentiality.

11. I have given my anxious consideration to the aforesaid contention. It is disclosed from the records that similar information as is given to the defendant was also given to other firm as well which is disclosed on perusal of the documents filed by the plaintiffs. The documents therein, particularly, at pages 71 to 75 clearly indicate that similar technical datas were also floated by the plaintiffs to a third party also viz., M/s. Aerocomfort, New Delhi, also who were bidding for the said project along with the defendant. In view of the fact that, the said datas and information were circulated by the plaintiffs to others as well, it cannot be said that the said documents retained any confidentiality. The defendant has stated that the information supplied to the defendant by the plaintiffs is standard information which a manufacturer supplies to its prospective customers and on the basis of the said information, manufacturing of a dehumidifier is not possible.

12. I have also looked into the documents filed on the records which contain a dehumidifier of the plaintiff as also of the defendant. The said two dehumidifiers cannot be said to be similar to each other on its visual presentation and it cannot be said to be a three dimensional reproduction of any artistic work of the plaintiffs. The data and information which were sent by the plaintiffs to the defendant was of a dehumidifier of the plaintiff which is on record which in no way could be said to be similar to the one of the defendant as indicated from the aforesaid documents on record.

13. The drawing in respect of which protection is sought for on the ground that it is protected under the Copyright Act has also not been placed on record. In absence of the same, it is not possible to determine even prima facie as to whether there is any infringement of the said artistic work of the plaintiff when it is examined from the point of view of three dimensional reproduction. The plaintiffs have also sought to place on record certain drawings and photographs subsequent to the date of arguments of the present application. By seeking to place the said documents, the plaintiff is now seeking to introduce a case which is not pleaded in the plaint. The plaintiff seeks to rely upon a document which is alleged to be a report dated 5.3.1999 alleging that the dehumidifier claimed to be of the defendant is not its, but of Munters AG. The report is through a letter dated 5.3.1999 submitted after an alleged inspection carried out few years back and admittedly is based on recollection from his memory. It is admitted that the dehumidifier was in a sealed condition. No explanation is forthcoming why and under what circumstances the report is submitted after several years. Such document does not inspire any confidence and no reliance could be placed on such document filed at a belated stage and after about six years of filing of the suit. The plaintiffs also seek to place on record a catalogue of Munters in support of their contention now raised subsequent to the stage of the argument that the dehumidifier of the defendant is identical with that of Munters. No such case is pleaded in the plaint and, therefore, now the plaintiffs cannot seek to introduce a new case without making attempt to get the same duly incorporated in the plaint in accordance with law. The said documents sought to be placed on record, seen the light of the day, after arguments on the injunction application. It is needless to state that the rights of the plaintiffs, if any, is to be decided on the basis of the pleadings and documents and evidence placed on record at the time of institution of the suit. Munters AG has not come forward alleging infringement of copyright etc., by the defendant. Even otherwise, the allegation that the defendant has copied the dehumidifier of the plaintiffs is prima facie nullified by statement of the plaintiffs that the defendant has copied dehumidifier of a third party and thus there is a shift in the stand of the plaintiffs from what was pleaded in the plaint.

14. On consideration of the entire facts and circumstances of the case, I am of the considered opinion, that the plaintiffs have failed to make out any prima facie case for grant of temporary injunction in their favour. The application filed by the plaintiffs, i.e., I.A.No. 14133/1992 is dismissed and the application of the defendant, i.e., I.A.4566/1996 stands allowed. The ad interim injunction granted by this Court 14.8.1992 stands vacated.

15. List the suit on 7.7.1999 for further orders.