Dassault Systems S.A. & Anr. vs Sphinx Worldbiz Lim.
2009 Latest Caselaw 4002 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          I.A. No.15132 /2008, IA No.6823/2009 & IA No.6824/2009
           in C.S. [OS] No.2569 /2008

                                  Reserved on:       14th September, 2009

%                                 Decided on     :       6th October, 2009

Dassault Systems S.A. & Anr.                        ...Plaintiffs
                    Through : Mr. Sanjay Jain, Sr. Adv. with
                              Mr. Prashant Gupta and Ms. Priya Rao,
                              Advs.

                       Versus

Sphinx Worldbiz Lim.                               ....Defendant
                    Through : Mr. V.P. Ghiraiya, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

3. Whether the judgment should be reported                          No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of three applications bearing

I.A. No.15132/2008 filed by the plaintiffs under Order XXXIX Rules 1

and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as

„the Code‟) and I.A. No.6823/2009 and I.A. No. 6824/2009 filed by the

defendant under Order XXXIX Rule 4 and Order IX Rule 2 of the Code

for vacation of the ex parte ad interim order and for dismissal of the suit

due to non-filing the process fee and registered A/D covers as per the

directions of the court respectively.

2. The brief facts of the case are that the plaintiffs filed the

present suit for permanent injunction to restrain copyright and trademark

infringement, delivery up and rendition of accounts etc., inter alia,

praying that a decree for permanent injunction be passed against the

defendant, its principal officers, directors, agents, franchisees, servants

and all others acting for and on its behalf from directly or indirectly

cracking, copying, reproducing, storing, installing and/or using pirated

CATIA software program of plaintiffs and its various versions without

licence and/or providing educational, certification courses and/or

engineering services in relation thereof, thereby amounting to

infringement of copyright in plaintiff no.1's computer

programmes/software titles.

3. The suit and interim applications were listed before this court

on 10.12.2008 when in I.A. No.15132/2008 (under Order XXXIX

Rules 1 & 2 of the Code), the court passed an ex parte ad interim

injunction against the defendant, its agents, representatives, servants

and assigns restraining them from using the software of the plaintiffs

with respect to CATIA software programme without obtaining a valid

licence from the plaintiffs. One week‟s time was granted for

compliance under Order XXXIX Rule 3 of the Code.

4. In another application filed under Order XXVI Rule 9 of the

Code being I.A. No.15133/2008, the court appointed a local

commissioner to seize and seal the computers, CPUs, compact discs and

other storage media, which were found to contain unlicensed/pirated

versions of the plaintiffs‟ softwares and release the same on Superdari to

the defendant with a direction to produce the same before this court as

and when directed.

5. In compliance with the said order, the local commissioner

visited the premises of the defendant on 15.12.2008 and filed his report

stating therein that "the software found in the server CPU and one of the

hard discs was unlicensed and pirated and the server CPU and the hard

discs also had cracks for the purpose of installing the software of the

plaintiff company without genuine licences. Two codec CDs of the

software of the plaintiff company were also found and three CDs

containing pirated software and cracks of the plaintiff company‟s

software were seized from the premises of the defendant but the same

went missing along with one of the external hard drive and one Pen

drive as well."

6. Thereafter the defendant filed two applications i.e. I.A.

No.6823/2009 under Order XXXIX Rule 4 of the Code for vacation of

ex parte ad interim order mainly on the ground that the provision of

Order XXXIX Rule 3 of the Code has not been complied by the plaintiff

and second application filed under Order IX Rule 2 of the Code being

I.A. No.6824/2009 on the reason that the plaintiff did not file the

process fee and registered

AD cover as per order dated 10th December, 2008 and since the plaintiff

is enjoying the ex parte ad interim injunction, therefore, the suit is

liable to be dismissed.

7. In other application filed under Order IX Rule 2 of the Code

of Civil Procedure being I.A. No.6824/2009, the contention of the

defendant is that on 06.03.2009 the defendant made the enquiries from

the registry of this Court in order to find out about the filing of report of

the local commissioner and the learned counsel for the respondent has

also filed Vakalatnama on 12.03.2009. The counsel has also inspected

the court file on 23.03.2009 from where he noted that the plaintiffs did

not file process fee and registered A/D covers for issuance of summons

and notice in the main suit as well as in the interim application under the

provisions of Order IX Rule 2 of the Code.

8. Both these applications have been contested by the plaintiff

and replies have also been filed by the plaintiffs.

9. The defendant has also opposed the application filed under

Order XXXIX Rules 1 and 2 of the Code filed by the plaintiff mainly

on the ground that the plaintiffs have concealed various material facts

from this court by not disclosing the certificate of copyright. Further the

plaintiffs are not entitled to an injunction under Section 41[h] of the

Specific Relief Act, 1963, and this court has no territorial jurisdiction to

try the present suit.

10. It is submitted that the defendant has taken the licences from

Pacific Infratech Pvt. Ltd. for training and project execution as per

defendant‟s agreement signed between Pacific and Sphinx dated

25.03.2008 enforced upto the end of December 2008, therefore, the

defendant is authorised to resell the plaintiffs‟ software for supplying

CATIA V5 R17 software to the defendant for its project work. It is

averred that on 22.02.2008, the defendant‟s Managing Director,

Mr.Narender Singh Surana had again initiated talks related to

withdrawal of 4 licenses and 85 softwares, which ZIGMA had

purchased for Rs.96 lacs in 2001.

11. As regards, I.A. No.6823/2009 filed under Order XXXIX

Rule 4 is concerned, the contention of the learned counsel for the

plaintiffs is that the complete set of paper book was served to the

defendant during the course of the proceeding conducted by the Local

Commissioner on 15th December, 2008 to 17th December, 2008.

Learned counsel for the plaintiffs has shown the covering letter as well

as the affidavit of compliance. It appears from the record that the

affidavit of compliance of Order XXXIX Rule 3 was filed on 18th

December, 2008 by an affidavit of Mr. Prashant Gupta, Adv. However,

it also appears that by letter dated 16 th December, 2008 the papers were

served upon the defendant on 17th December, 2008. Since one week‟s

time was granted to the plaintiffs to make compliance under the

provision of Order XXXIX Rule 3 it appears that the compete set of

papers have been supplied to the defendant personally on 17th

December, 2008 under the signatures of the defendant, therefore, there

is no force in the submission of the learned counsel for the defendant.

However, it appears from the record that the affidavit of the said

compliance was filed on 18th December, 2008 which is delayed by one

day only. The contention of the defendant cannot be accepted as the

defendant did not make any grievance after the receipt of the letter on

17th December, 2009 that the letter did not contain the complete set of

paper book.

12. No doubt, compliance of Order XXXIX Rule 3 of the Code

is a mandatory provision. Order XXXIX Rule 3 reads as under :-

"3. Before granting injunction, Court to direct notice to opposite party.--The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-- [a] to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--

(i)a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and [b] to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]

13. In the present matter, one cannot deny the fact that the

defendant got the knowledge of the suit and interim order within five

days of passing it. Further, the defendant itself signed the said letter,

which was delivered to it personally on 17th December, 2008 and it did

not raise any point at that time about the non receipt of the papers, nor

did it ask the plaintiffs to supply the copies immediately. Mere reading

of the proviso to Order XXXIX Rule 3 of the Code shows that there are

two options when an ex parte ad interim order is passed : one is to

deliver the relevant papers as mentioned in the said provisions and

second is that the required papers be sent by registered post. In the

present case, the papers were delivered at the defendant‟s place and

under those circumstances, the plaintiffs have made the compliance of

Order XXXIX Rule 3 of the Code, therefore, there is no merit in this

argument of the defendant.

14. However, the affidavit in the present case has not been filed

within the time granted by the court. There is a delay of one day in this

regard. The provision of Order XXXIX Rule 3 of the Code is a

mandatory provision. Delay in compliance is a serious matter and

cannot be condoned unless there exist some special circumstances. In

the present case, as I have held that the complete paper book has been

handed over personally on 17th December, 2008 which is within time

granted by the court and the affidavit was filed on 18th December,

2008, the delay of one day is condoned considering the over all

circumstances of the matter, but subject to the cost of Rs.10,000/-

which shall be paid by the plaintiffs to defendant within 2 weeks from

today. I.A. No.6823/2009 is disposed of accordingly.

15. In the application filed under Order IX Rule 2 of the Code, the

summons in the main suit and notice in the application were issued for 23 rd

April, 2009 i.e. the next date of hearing. It appears from the record that the

plaintiffs did not file the process fee, however, as per record the defendant

had filed the Vakalatnama on 13th March, 2009 before the next date of

hearing. In fact the defendant was fully aware on 15 th December, 2008

itself about the pendency of the suit. Further on acceptance of service on

17th December, 2008, the defendant did not make any complaint for non-

receipt of any paper and infact filed the written statement and replied to

the interim application and present two applications.

16. The objections raised by the defendant in the present

application are too technical and without any substance. Probably, the

plaintiff did not file the process fee because the service had been effected

personally. I do not find any merit in this application and the same is

dismissed. I.A. No.6824/2009 is disposed of.

IA No.15132/2008

17. As regards the injunction application filed under Order XXXIX

Rule 1 and 2 of the Code, it appears from the report of the local

commissioner that Mr. Surana, the defendant‟s Managing Director had

agreed during the proceedings when the local commissioner visited the

defendant‟s premises that software found in the server CPU and one of the

hard discs was unlicensed and pirated and that the server CPU and the

hard disc also had cracks for the purpose of installation of the software of

the plaintiff company without genuine license.

18. This admission of the defendant itself shows that the defendant

was using unlicensed software of the plaintiffs, which was found in the

server CPU etc. of the defendant. This evidence as well as admission

made by the defendant is good enough to confirm the ex parte ad interim

injunction order granted by this court on 10 th December, 2008 in this

application. There is no need to go into further contentions raised by the

defendant as the same will be considered at the time of trial as the restraint

orders are only against using the unlicensed software CATIA of the

plaintiffs without obtaining a valid license from the plaintiffs and I find

that the defendant has no defence under these circumstances. This

application is, therefore, allowed and the ex parte ad interim injunction

order granted by this court on 10 th December, 2008 to this extent is made

absolute till the disposal of the suit.

19. As agreed by the learned counsel for the parties I appoint Mr.

Aditya Singla, Adv. (Mobile No.9818601006) to de-seal the

computers/CPUs and create back up copies of the hard discs/storage

media on new hard discs/storage media provided by the defendant. The

unlicensed/pirated software as identified by the representative of the

plaintiffs will then be deleted from the new hard discs. The defendants

will be at liberty to use the new hard discs along with the seized

computers/CPUs. The original hard discs would then be sealed and

handed over to the defendants on superdari. The Local Commissioner

shall also take one copy of the print of the storage media and file the

same alongwith his report. The fee of the Local Commissioner is fixed

at Rs.20,000/- excluding actual expenses. The Local Commissioner

shall file a report within four weeks from today.

20. The present application being IA No.15132/2008 stands

disposed of accordingly.

21. All these applications being IA No.15132/2008, IA

No.6823/2009 and IA No.6824/2009 are disposed of.

C.S. [OS] No.2569 /2008

List the matter before the Joint Registrar on 1st December, 2009

for admission/denial of documents.

MANMOHAN SINGH, J.

OCTOBER 6, 2009 SD