Sap Aktiengesellschaft & Anr. vs M/S Parginsys & Anr.
2009 Latest Caselaw 486 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                        Date of Reserve: January 28, 2008
                                                          Date of Order: February, 11 2009
+ CS(OS) 29/2009
%                                                                                 11.02.2009
      SAP Aktiengesellschaft & Anr.                               ...Plaintiffs
      Through: Mr. Kunal Verma , Advocates

         Versus

         M/s Parginsys & Anr.                                     ...Defendants
         Through: Nemo


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


         JUDGMENT

1. This suit has been filed by the plaintiff, a German Company/firm having an

Indian subsidiary company with registered office at Bangalore, in respect of

infringement of copyright and for damages and delivery and rendition of accounts

against the defendants who are stated to have their office in Nagpur, Maharashtra

and committed infringement in Maharashtra.

2. It is the case of the plaintiff that plaintiff learnt about the defendants'

organization and came to know about the defendants offering to provide training

services in the plaintiffs' software programme. The plaintiff made discreet inquiries

and planted a decoy student to get the training who obtained a receipt of payment of

fees at defendants' office in Nagpur and found out that the training was being

imparted on a pirated software and the defendant was infringing copyright of plaintiff

at Nagpur. The Plaintiff's agent got an FIR registered, being No.303 on 19th November

2008 registered against the defendants under the provisions of Copyright Act and

under Section 420 of Indian Penal Code at Nagpur.

CS (OS)29/09 SAP Aktiengesellschaft & Anr. vs.M/sParginsys & Anr. Page 1 Of 4

3. The plaintiff has invoked jurisdiction of this Court on the ground that the

plaintiff No.2 was carrying on its business within the jurisdiction of this Court through

its branch office situate at 2nd Floor, Gesco Centre, 70, Nehru Place, New Delhi-

110019 and the training services of the plaintiff were being offered by the authorized

partners in New Delhi.

4. I have perused all documents filed by the plaintiff but could not find a single

document showing existence of a branch office in New Delhi. No lease deed showing

that the plaintiff has taken on rent an office in New Delhi has been filed. There is no

doubt that the plaintiff has a right to file a suit for infringement of its copyright at the

place where it works for gain but the perusal of entire plaint and the documents

annexed therewith would show that the plaintiff works for gain either in Germany or

in Bangalore. The plaintiff No.1 while has given its address of Germany, plaintiff No.2

has given its address of Bangalore and below this address it is written also at a Delhi

address. The expression 'carrying on its business' or personally works for gain, does

not mean having business interest at a particular place. Plaintiff through its partners

may be imparting training to students in Delhi. The documents filed show that the

students were being imparting training of its software throughout India at different

locations in different cities by different companies with whom plaintiff entered into a

kind of agreement. The plaintiff is the supplier of the software and the training is

being imparted by the partners. The plaintiff has placed on record a sample of

Partners Cooperation Agreement being entered into. A perusal of this agreement

would show that the training location and training apparatus and all paraphernalia

was to be provided by the partners and the software was to be supplied by the

plaintiff. Thus, it is in fact an arrangement of user of the plaintiff's software under a

license. If somebody is using the plaintiff's software under license of the plaintiff or

the plaintiff is providing software support that would not mean that the plaintiff was

having place of business where the training was being imparted to the students by

the partners.

CS (OS)29/09 SAP Aktiengesellschaft & Anr. vs.M/sParginsys & Anr. Page 2 Of 4

5. In the present case, all the reliefs which have been sought by the plaintiffs

were based only on personal obedience of the defendants. There is no relief which

can be obtained without personal obedience of the defendants. The defendants do

not have any presence or work in Delhi or at any other place except Nagpur, neither

the plaintiff has mentioned an address of Delhi where the defendant was running

training institute using plaintiff's pirated software. Despite the fact that the defendant

was allegedly infringing the copyright in Nagpur, Maharashtra and the plaintiff was

having its subscribers company registered at Bangalore, the suit seems to have been

filed in Delhi as a device to force the defendants to come to Delhi to engage a

counsel and spent exorbitant sums on litigation and contest litigation in Delhi to see

that this litigation becomes a costly affairs for the defendants. Plaintiff is having its

registered office in Bangalore and could have easily filed this suit at Nagpur where

the plaintiff got an FIR registered against the defendant, but chose to file this suit in

Delhi on basis of vague allegations that the plaintiff was having its branch office at

New Delhi by giving an address of Delhi with no supporting document that this office

was actually existing. If the plaintiff really had a branch office in Delhi, nobody

stopped the plaintiff from placing on record the documents pertaining to his branch

office at Delhi like lease deed of the office hired by the plaintiff in Delhi. This Court

has no sympathy with those who infringe the copyright and trademark but

simultaneously the Court has to see that the court is not used as a tool of harassment

for the litigants like the one as in this case. The defendant is a person and not a big

company who is indulging into the infringement of copyright and so he must be dealt

at the place where he has committed infringement, unless the suit is squarely

covered under Section 62(2) of Copyright Act. The criminal prosecution has been

launched by the plaintiff against the defendants at the place of defendants'

shop/business, which only shows that the jurisdiction of this Court has been invoked

in order to see that the defendants are not able to defend their case, if they had any

defence. Even in civil matter, a person has a right to fair trial and this right cannot be

made illusory by entertaining a suit against him at a Court, thousand miles away,

where no part of cause of action took place, on the basis of unfounded assertion of

CS (OS)29/09 SAP Aktiengesellschaft & Anr. vs.M/sParginsys & Anr. Page 3 Of 4 having a branch office by plaintiff.

6. In view of above position, I consider that this plaint is liable to be returned to

the plaintiff for filing the same to the Court of appropriate jurisdiction i.e. at Nagpur.

Accordingly, let the plaint be returned to the plaintiff for filing the same at Nagpur.

February 11, 2009                                          SHIV NARAYAN DHINGRA J.
rd




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