Microsoft Corporation And Anr. vs Mr. Mahendra Jain And Ors.
2007 Latest Caselaw 2401 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioners have filed a suit for permanent injunction restraining infringement of copyrights, infringement and dilution of trademarks, damages, delivery up, etc. against the defendants on account of the defendants using counterfeited/duplicate/pirated software of the plaintiffs/petitioners' MICROSOFT WINDOWS XP Professional Versions 2002 or any other software programmes of the plaintiffs. It is the case of the plaintiffs/petitioners that such pirated goods were being sold by the contemnor, who is a defendant in the suit.

2. The plaintiffs/petitioners along with the suit filed an application for interim relief and in terms of order dated 24.10.2007 summons were issued in the suit and notice in the interim application. Interim relief was also granted to the plaintiffs, restraining sale, distribution and copying of such counterfeited unlicensed versions of the software of the plaintiffs. A Local Commissioner was also appointed to visit the premises of the defendants to seize the offending goods.

3. The present contempt petition has arisen on account of the conduct of the contemnor along with his father and brothers and neighbouring shopkeepers whereby the Local Commissioner was obstructed in carrying out his local commission, was assaulted and beaten up. The report of the Local Commissioner shows that the Local Commissioner explained the reason of his visit to the contemnor and handed over a copy of the order. At the stage when the contemnor was going through the order, the Local Commissioner requested Mr. Amit Upadhyay, an advocate of the plaintiffs to search the premises of the defendants and identify the counterfeited software versions of the plaintiffs under the supervision of the Local Commissioner and the Local Commissioner proceeded to make out the proceedings report. Mr. Amit Upadhyay found ten (10) pieces of such pirated software, which were handed over to the Local Commissioner and it is at that stage that the contemnor pounced on Mr. Amit Upadhyay, snatched the bag containing the software and started verbally abusing Mr. Upadhyay. The contemnor then proceeded to hold Mr. Upadhyay by his collar and dragged him just outside his shop and started shouting very loudly and started beating Mr. Upadhyay mercilessly with punches, slaps, and kicks. The contemnor then used his mobile phone to make a call to his father and his two brothers as also his friends in the nearby shops. The Local Commissioner was shocked at the behavior of the contemnor, his father, his brothers and the mob of people and warned them not to assault Mr. Upadhyay and himself. The Local Commissioner also got hurt in the proceedings and the contemnor and his father and brothers, in fact, turned upon the Local Commissioner and started slapping and punching him. The order passed by this Court was taken possession of in original and was torn apart. The On-spot-proceedings were also torn apart. It is stated that the contemnor and his family members claimed that they were politically well connected and in the mean time a sizable mob had accumulated possibly consisting of the nearby shopkeepers. It is with grave difficulty that the Local Commissioner along with Mr. Upadhyay managed to get away to the local police station where they lodged a report.

4. The report of the Local Commissioner substantiates the conduct of the contemnors.

5. The original contempt petition was filed only against the defendant as such, but in view of what was set out in the report of the Local Commissioner, direction was also issued to summon the two brothers and father of the petitioner as also one shopkeeper of that area, who had been identified as Mr. Shailesh Bokadia. The original contemnor and his brothers and fathers are present, who are now arrayed as the contemnors in the present proceedings.

6. Learned Counsel for the plaintiffs/petitioners referred to the judgment of the learned single Judge of this Court in GE Motors India Pvt. ltd. v. Mukesh Kumar 2006 (32) PTC 768 (Del.). The factual matrix of the case is that the Local Commissioner appointed to take into custody all infringing goods was physically assaulted and forcefully dragged. The details of such incidents have been set out in the judgment and to an extent they are identical to the conduct of the contemnors in the present case.

7. It has been observed in the aforesaid case that the seriousness of the irresponsible acts of the contemnors and the degree of harm caused to the administration of justice, would decisively determine whether the matter should be tried as a civil or criminal contempt. It was found that there was willful disobedience of the orders of the Court by the respondents coupled with irresponsible acts of rebellion and of defiance to interfere with the administration of justice which ex facie amounts to acts of criminal contempt. It was also observed that an apology which lacks bonafide and is intended to truncate the process of law with ulterior motive of escaping the likely consequences of such flagrant violation of the orders of the Court and disrespect to the administration of Justice cannot be permitted. The matter was referred to the Division Bench being a criminal contempt matter and in terms of order passed on 26.10.2005 in CCP 51/2005, the contemnors were found guilty of criminal contempt and were sentenced. The Division Bench observed that a trend has arisen of assaulting Advocate Commissioners appointed by the Court and if this trend is not curbed, in future no Advocate will ever accept becoming an Advocate Commissioner of this Court in future.

8. It is in view of the aforesaid position that I have no doubt that the conduct of the contemnors was such as would have entailed making a reference to the Division Bench for criminal contempt proceedings. The only difference in the present case is that at the stage of inception itself the contemnors have really not disputed their improper and illegal conduct and have tendered unconditional apology. They have undertaken not to do so in future. Not only that, the contemnors have agreed to compensate the advocate as well as the Local Commissioner with compensation of substantive amounts on account of injury caused to them. The contemnors together have agreed to pay a sum of Rs. 1.00 lakh each to the Local Commissioner, Mr. Kamal Mehta and the advocate Mr. Amit Upadhyay as compensation. The contemnors have also agreed to co-operate with the petitioners to find out the sources of such piracy and assist them in future.

9. It is in view of the aforesaid position that I refrain from making a reference to the Division Bench as even the petitioners feel that the expression of regret and apology coupled with damages which the contemnors are paying and the undertaking to this Court not to indulge in such conduct in future would be a more meaningful redeeming act of the contemnors rather than merely sending them behind bars.

10. I also deem it appropriate to direct that the contemnors will be kept under a watch for a period of one (1) year and in case of change of their residential address, the contemnors would file the same in this Court with an advance copy to the learned Counsel for the petitioners.

11. The contemnors state that they will pay the damages to the advocates within a period of two (2) days and till then they will not leave the territory of Delhi.

12. The contempt notice issued is discharged in the aforesaid terms.

13. List for compliance on 14.12.2007.