Unistal System Pvt. Ltd. vs Prodata Doctor Pvt. Ltd.
2009 Latest Caselaw 3527 Del

                HIGH COURT OF DELHI: NEW DELHI

              I.A. No. 4920/2009 in CS (OS) 792/2008

                             Date of Decision: September 3 , 2009

UNISTAL SYSTEM PVT.LTD.            ...      PLAINTIFF
                  Through: Mr. Pavan Duggal,

                           Versus

PRODATA DOCTOR PVT. LTD.                               ...
                                                    DEFENDANTS
                           Through: Mr. Maninder Singh, Sr.Adv. With
                           Mr. Ashwin Vaish, Adv. For D-1 to 4. Mr. S.S.
                           Rana, Adv. For D-5

CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA

     1. Whether reporters of local papers may be allowed
        to see the judgment?                          Yes
     2. To be referred to the Reporter or not?        Yes
     3. Whether the judgment should be reported in the digest or
        not?                                          Yes

S.L. BHAYANA, J.

By this application, I propose to dispose of I.A.No.4920/09,

filed by applicant/ plaintiff under Order XXXIX Rules 1, 2, 7 and 10

read with Section 151 of Civil Procedure Code.

2. This case is related to infringement of copyright, passing off,

unfair competition, rendition of accounts etc. and praying for

perpetual injunction, damages and other relief against the

Defendants.

3. By virtue of this application, plaintiff has prayed that the

defendants be directed to deposit all monies and revenues that

has been generated and collected by sale of Data Doctor for FAT

and NTFS as also the varied variants, altered, modified,

reproduced version under different names supported by different

domain name registrars, web hosting service providers and

payment gateways, be immediately seized and brought under the

custody and control of this court.

4. It is argued by the learned counsel of the plaintiff that even

after ad-interim ex-parte order dated 30/4/2008 defendants have

continued to see the copied version of their software and has also

placed on record list of certain websites of Prodata Doctor, list of

new products and newly found websites belonging to the

Defendants selling infringed software.

5. It is also alleged by the plaintiff that software downloaded

by the plaintiff on 2nd April 2009 clearly shows that except for the

names of Company/identity everything is identical and product is

also same and they are still in its possession of the infringed

source code.

6. During the course of arguments learned counsel of the

plaintiff also informed the court that pertaining to this fraud and

infringement an FIR No. RC 0006/07 with CBI registered under

section 65 of Information Technology Act 2000 and Section 63

read with Section 14(6)(ii) of Copyright and section 381 of Indian

Penal Code has also been filed against the defendants. To support

their case CBI has placed cyber forensic analysis report of the

hard disk of the computer of Defendant No.3 dated 12/5/08 from

CFSL, there by showing that Defendant No.3 was found using and

infringing the software of the plaintiff. To be reproduced below as

relevant:

"GOVT. EXAMINER OF QUESTIONED DOCUMENTS GOVT. OF INDIA, HYDERABAD- 500013

The digital evidence storage media has been carefully and thoroughly analyzed

1. XXXXXXX

2. The words 'unistal', 'quick recovery' was found in the suspected digital evidence storage media marked Q2, Q9 and Q20 (imaged as CCH-62-93-2008-Q2, CCH-62-93- 2008-Q9 and CCH-62-93-2008-Q20 respectively).

3. Folder match comparison of the folder '9xNTFS' found in the suspected digital evidence storage media marked Q2 (imaged as CCH-62-93-2008-Q2) with the folder '9xNTFS' found in the digital evidence storage media marked STD indicates that there are 89 identical files. The hard copy of the results is given at Annexure-A (Page Nos.7-11).

4. Forensic analysis by using 'Resource Hacker' indicates that there is several screen designs found in the suspected digital evidence storage media marked Q2, Q9 and Q20 (imaged as CCH-62-93-2008-Q2, CCH-62-93- 2008-Q9 and CCH-62-93-2008-Q20 respectively), which are similar to the designs found in the digital evidence storage media, marked STD. The hard copy of the results is given at Annexure-A (Page Nos.12-56).

5. Content match comparison of the file 'quickmode.cpp' present in the folder '9xNTFS' found in the suspected digital evidence storage media marked Q2 (imaged as CCH-62-93-2008-Q2) with the corresponding file present in the folder '9xNTFS' found in digital evidence storage media marked STD indicates that there are 9382 lines of matches and 6 mismatches. The hard copy of the results is given at Annexure-A (Page Nos. 57-175)."

7. Learned counsel of the plaintiff further contended that CFSL

report dated 12/5/08 clearly shows that Defendants are violating

the order dated 30/4/08 of this court and there are sufficient

reasons for directing that all the monies coming from the sale of

Data Doctor and NTFS and its variant and different copied

products and version to be brought under the control and custody

of this Hon'ble Court so that said money is not squandered or mis-

utilized in any manner.

8. Learned counsel of the plaintiff further contended that he is

only seeking direction for deposit in the court money fetched by

the Defendants by the sale of the copied products. According to

the plaintiff, prima facie the plaintiff's have interest in the money

fetched by the Defendant on account of sale of their version of

software by mere or slight alterations and has been protected vide

order dated 30/4/09 on IA No.5194/08 of the plaintiff under Order

XXXIX Rule 1 and 2 of CPC, vide which defendant No.3 was

directed to stop the sale of the copied and identical version with

that of the plaintiff. The counsel for the plaintiff has further

contended that the plaintiff is not asking for their share but only

seeking for deposit of the same in the court.

9. To oppose this application learned counsel of the

defendants argued that CFSL report cannot be looked into at this

stage and in any case contents of the CFSL report are matter of

criminal trial and the same needs to be proved in accordance with

law before appropriate court to take the notice of their report. The

CFSL report sought to be placed on record is wrong and

misleading.

10. This application is a pressure tactics applied by the plaintiff

with an intention of delaying the decision in the I.A.No. 9015/08

filed by the defendants under Order 39 Rule 4 thereby seeking a

vacation of order dated 30/4/08.

11. Learned counsel further argued that at this stage

defendants could not be compelled to disclose his defence in the

criminal case qua said report, it may have an adverse bearing on

criminal trial and it is against his fundamental right guaranteed

under Article 20(3) of the Constitution of India.

12. This is harsh case in which defendant is already suffering

from an exparte injunction and if this application is allowed it

would cause further loss to him.

13. On the merits of this case learned counsel for the

defendants argued that this is not a case of alleged misuse or

theft of source code rather since both the plaintiff and defendants

were using the same program i.e. Microsoft foundation classes, to

make their own source code leading to final software products in

question, it is but natural that both programs are bound to have

certain alleged similarities in the visual lay out.

14. After hearing the learned counsel of both the parties and

going through the record and other documents like CFSL report

etc. I am of the view that plea taken by the defendants have no

legal basis to stand and are not tenable. This is a simple case of

violation/breach of court order. Order XXXIX Rule 10 CPC is meant

to take care of such kind of situation during the pendency of the

suit. In such kind of circumstances court must weigh one need

against another and determine where the balance of convenience

lies. As there is apparent and sufficient material on record to show

the breach of order of this court. To my mind plaintiff is entitled to

this relief since the defendants are continuing to sell the copied

version and enjoying the benefits, he must deposit the proceeds

of the same in the court. The Court can surely in a case of this

kind, in fair exercise of its judicial discretion order for deposit of

money pending decision of the suit for the purpose of doing

justice or to prevent abuse of the process of the court.

15. In the result, this application is allowed. In the interest of

justice, as per order passed above, the defendants are granted

four weeks time to deposit the proceeds of sale of the Data Doctor

for FATS and NTFS in the contravention of order dated 30.4.2008

of this Court.

16. The application stands disposed of.

CS (OS) 792/2008

List on 11.01.2010.

S.L. BHAYANA, J.

September 03, 2009