Microsoft Corporation And Anr. vs Mr. A. Jain And Ors.
2007 Latest Caselaw 2387 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 14229/2007 (Under Order 9 Rule 6 CPC)

IA No. 14230/2007 (Under Section 5 of the Limitation Act, 1963)

1. These two applications have been filed for recall of the order dated 9.10.2007 in terms whereof the right of the defendants to file the written statement stood closed. Summons were served on the defendants on 4.7.2007 and no written statement had been filed despite the lapse of ninety (90) days, such right was closed on 9.10.2007. The plaintiffs were directed to file the affidavits of examination-in-chief. The affidavits have been filed by the plaintiffs.

2. The only ground stated in the application is that the defendants were not aware that the written statement had to be filed within thirty (30) days. Ignorance of law can hardly be a defense especially when the defendants are advised by an advocate. In fact, no written statement has been filed even with these applications of the defendants, which is proposed to be placed on record.

3. These applications have now been filed at the stage when the matter has come up for final hearing.

4. The Supreme Court has cautioned that extension of time whether beyond thirty (30) days or ninety (90) days cannot be granted as a matter of routine. There must be special circumstances especially when the delay is even beyond ninety (90) days. In this behalf a reference may be made to the observations made by the Supreme Court in Kailash v. Nanhku and Ors. . The relevant portion in this behalf is as under:

45. We sum up and briefly state our conclusions as under:

...

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.

(emphasis supplied)

5. Dismissed.

+ CS (OS) No. 967/2007

6. The plaintiffs have filed a suit for permanent injunction restraining infringement of copyright, delivery up, rendition of accounts of profits, damages and costs against the defendants on account of the use by the defendants of counterfeited/unlicensed versions of the software of the plaintiffs' MICROSOFT WINDOW XP Professional Version 2002 and MICROSOFT WINDOWS 2000.

7. The suit has been instituted through Mr. Anand Banerjee, authorised signatory and the letter of authority in his favor by plaintiff No. 1 and the power of attorney issued by plaintiff No. 2 have been proved as Exhibits P-1 and P-2 respectively. It is the case of the plaintiffs that since the year 1975, the plaintiff No. 1 is engaged in the development, manufacture, licensing and support of a range of software products for various computing devices including the aforesaid softwares. Plaintiff No. 2 is wholly owned by plaintiff No. 1 and is carrying out the marketing in India.

8. The witness has proved the certified copies of the original copyright certificates for the software programmes as Exhibits P-3 to P-8 and claims that on receiving information about the defendants' infringing activities, investigations were initiated. An independent investigator was appointed being Mr. Mohd. Hasan Naved who has submitted his report.

9. Summons in the suit and notice on the interim application filed by the plaintiffs were issued on 25.5.2007 and interim orders were granted. The Local Commissioners were also appointed to visit the premises of the defendants to locate any unlicensed/pirated software. The Local Commissioners have submitted their reports in terms whereof it has been found that there was pirated software at the premises of the defendants as alleged by the plaintiffs. Not only that certain counterfeited certificates of authenticity were also found. The defendants failed to file the written statement within the stipulated period of thirty (30) days from the date of receipt of summons and notices and even after the expiry of the statutory period of ninety (90) days, have not done the needful. Thus, the right of the defendants to file the written statement was closed on 9.10.2007. The plaintiffs have filed the affidavits of evidence of Mr. Anand Banerjee and Mr. Mohd. Hasan Naved, the investigator. Mr. Banerjee has affirmed to what is stated in the plaint while Mr. Naved has proved the reports submitted by him.

10. On the basis of the pleadings and the documents, it is apparent that the plaintiffs have exclusive rights in respect of the software for which the copyright vests in the plaintiffs. The use of the counterfeited/duplicate software by the defendants is, thus, clearly illegal and not only does it dilute the rights of the plaintiffs and cause financial damage but also causes deception to the public at large especially when such authenticity certificate as mentioned aforesaid are issued. The purchasing public would, thus, presume that these are authenticated software, which are being sold by the defendants.

11. I am, thus, of the considered view that the plaintiffs are entitled to a decree in terms of prayer Clauses (a) & (b) of paragraph 36 of the plaint. This would envisage that the seized goods released to the defendants on superdari be handed over to the plaintiffs for destruction and the needful be done within fifteen (15) days from today.

12. The other aspect which arises for consideration is the issue of damages and rendition of accounts. Learned Counsel for the plaintiffs contends that there are catena of judgments by this Court where the parties which do not appear or fail to contest the matter should not seek to get advantage out of their failure to produce the relevant material on record for determination of such damages. There is force in the contention of the learned Counsel for the plaintiff as this aspect has been repeatedly examined by this Court in the judgment of Times Internet Limited v. Indiatmes.com and Ors. being CS (OS) No. 125/2007 pronounced on 31.7.2007. Learned Counsel for the plaintiffs has substantiated his case to such damages by reference to the judgment of this Court in Asian Paints (India) Ltd. v. Balaji Paints and Chemicals and Ors. 130 (2006) DLT 150 wherein it has been observed that a party not appearing in the Court should not avail of the benefit of such absence from the Court proceedings. The relevant portion in this behalf is as under:

Learned Counsel for the plaintiff states that apart from the relief claimed for in paras (a) to (d) of para 33 of the plaint, the plaintiff is also entitled to damages. In this behalf, learned Counsel has relied upon the judgments of this Court in Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr. 1999 PTC (19) 578, Hindustan Machines v. Royal Electrical Appliances 1999 PTC (19) 685 and CS (OS) 2711/1999 M/s L.T. Overseas Ltd. v. M/s Guruji Trading Co. and Anr. decided on 7.9.2003. In all these cases, damages of Rs. 3 lakhs were awarded in favor of the plaintiff. In Time Incorporated v. Lokesh Srivastava and Anr. 2005 (30) PTC 3 (Del) apart from compensatory damages even punitive damages were awarded to discourage and dishearten law breakers who indulge in violation with impunity. In a recent judgment in Hero Honda Motors Ltd. v. Shree Assuramji Scooters this Court has taken the view that damages in such a case should be awarded against defendants who chose to stay away from proceedings of the court and they should not be permitted to enjoy the benefits of evasion of court proceedings. The rationale for the same is that while defendants who appeared in court may be burdened with damages while defendants who chose to stay away from the court would escape such damages. The actions of the defendants result in affecting the reputation of the plaintiff and every endeavor should be made for a larger public purpose to discourage such parties from indulging in acts of deception.

13. Thus, the only question which remains to be determined is the quantum of damages. There is no doubt that some thumb rule has to be applied in such a case in view of the absence of the material by the defendants but that itself cannot deter the courts from enforcing the damages.

14. I am, thus, of the considered view that the plaintiffs should be entitled to damages to the tune of Rs. 5.00 lakh especially taking into consideration the nature of violation done by the defendants as mentioned aforesaid. The plaintiffs shall also be entitled to costs.

15. A decree is, thus, passed in favor of the plaintiffs and against the defendants in terms of prayer Clauses (a), (b), (d) & (e) of paragraph 36 of the plaint with damages against the relief claimed for in prayer Clause (c) of paragraph 36 of the plaint quantified at Rs. 5.00 lakh.

16. Decree sheet be drawn up accordingly.