Shashank Shekhar Mishra vs Ajay Gupta
2011 Latest Caselaw 4323 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on:   01.09.2011
                      Judgment Pronounced on: 05.09.2011

+ CS(OS) No. 1144/2011


Shashank Shekhar Mishra                 ..... Plaintiff
               Through: Mr. Pavan Duggal, Advocate

                      versus


Ajay Gupta                                   ..... Defendant
                      Through: None

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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 Yes in Digest?

V.K. JAIN, J

1. This is a suit for permanent injunction, rendition

of accounts, delivery up of the infringing material and

damages. The plaintiff, who is studying in Sri Ram Murti

Smarak Institute of Technology, Barielly, claims to be a tech

savvy professional with vast experience in the field of web

technologies including PHP, HTML, CSS, Java Script, J-

Query, Wordpress, Photoshop etc. According to plaintiff, he

is the author of "Quizpro Wordpress Plugin", using which

the Wordpress users can easily use quiz on their Wordpress

Blogs or Wordpress driven websites. It is alleged that on 9 th

November, 2010, the plaintiff purchased a laptop for a

consideration of Rs.34,100/- and used it extensively for the

purpose of web designing as well as doing and processing

various technology related activities on the internet. He was

also storing various user IDs, passwords and other data in

the laptop. Confidential financial information of the plaintiff

including details of his mother's bank account as well as

credit card information belonging to his cousin brother was

stored in the laptop. He was also using the laptop for

creating, storing and retaining the original web designing

templates, designs and styles.

The plaintiff claims to be the author of his original

web designing templates, designs and styles, software,

computer programme, software source code etc., the same

being original "literary works" within the meaning of Section

2(o) of Copyright Act, 1957. The source code according to

the plaintiff constitutes confidential data and information

which is kept under security so as to ensure its

confidentiality. He claims to have contributed immensely

through his skill, labour and knowledge, in developing and

producing the aforesaid templates, designs, styles,

softwares, source codes etc.

2. The plaintiff claims to have been very active on e-

commerce website www.algulfnet.biz and also claims to

have got various accounts therein. www.algulfnet.biz is a

service driven website which offers netizens the opportunity

to participate in surveys and earn online and also purchase

subscription for Surveys Online Today E-Zine along with

Panelist Training. The aforesaid website provides service in

many forms and for a variety of purposes. The website

works on the superstructure of ePins, wherein one pin is

equivalent to Rs.3600/- of actual commercial value. The

website allows the user, who has generated a minimum

specified number of points, to monetize those points and

redeem them for actual money, one point being equivalent

to Rs.50/-. According to the plaintiff, he had accumulated

thousands of points in his various accounts by participating

in various surveys conducted by www.algulfnet.biz and had

generated 212 ePins which are being displayed in his two

accounts. Thus, these e-pins are virtual data and

information in the electronic form, which are capable of

being translated into physical money. The value of these

212 e-Pins is alleged to be Rs.763200/-.

3. The case of the plaintiff is that on 25th April, 2011,

the defendant who was known to him, he being a user of the

website www.algulfnet.biz, barged into his room along with

2 anti social elements and snatched away his laptop which

contained confidential data and information including

sensitive personal data, personally identifiable information,

banking and credit card details as well as his 212 ePins. He

also threatened to make public all photographs, messages

etc. so as to tarnish the reputation of the plaintiff. It is

alleged that the laptop, snatched by the defendant

contained plaintiffs templates and designs, wordpress

themes designed in PHP technology, credit card information

of his cousin brother, his photographs with friends and

colleagues, a text and excel file of 212 ePins, usernames and

passwords of 52 extra algulf accounts, usernames and

passwords of the email accounts and other websites,

usernames and passwords of the server and the plaintiff's

11 websites hosted by the plaintiff, plaintiff's PHP source

codes of computer software, pan card details and ICICI bank

account details of his mother, private messages, admin

passwords of the website which the plaintiff had developed,

user name and password of the plaintiff for facebook page

as well as his user name and password for the website

www.godaddy.com.

The plaintiff has sought injunction restraining the

defendant infringing his copyright carrying out any business

or website containing the copyright material belonging to

the plaintiff and from transferring the aforesaid copyright

material to any person. He has sought an injunction

restraining the defendant from downloading, extracting,

distributing, transmitting, publishing, releasing or

disclosing the personal, confidential data and information of

the plaintiff. He has also sought mandatory injunction

directing defendant to handover the original laptop of the

plaintiff to him. The plaintiff has also sought delivery up of

all CDs, inlay cards, hard disks etc. containing the pirated

material. Rendition of accounts has also been sought by

the plaintiff amounting to Rs.20,10,000/- .

4. The defendant was proceeded ex parte on 7th July,

2011 as he did not appear despite service.

5. In his affidavit by way of ex parte evidence, the

plaintiff has supported on oath the case set up in the plaint.

6. I see no reason to disbelieve the unrebutted

testimony of the plaintiff and therefore hold that the

defendant had snatched his laptop containing the

information detailed in his affidavit by way of evidence.

Section 2(o) of Indian Copyright Act, defines

"literary works" to include computer programmes, tables

and compilations including computer "literary data bases.

Section 13 of the Act, to the extent it is relevant, provides

that copyright subsists in original literary works. Copyright,

in terms of Section 14 of the Act means, the exclusive right,

in case of computer programme, to reproduce the work in

any material form including its storage in any medium by

electronic forms, issue of copies of the work to the public

not being copies already in circulation, to perform work in

public or communicate it to the public, to make any

translation or adoption of the work and to sell or to give on

commercial rental or offer for sale or for commercial rental

any copy of the computer programme. Section 17 of the

Indian Copyright Act, to the extent it is relevant, provides

that the author of the work shall be the first owner of the

copyright therein. Therefore, the plaintiff holds copyright in

the computer programmes which he claims to have

authored and which are stated to have been stored in the

software which the defendant snatched from him. The

defendant has no right either to use the computer

programme authored by the plaintiff himself or to make that

work available to any other person whether for

consideration or otherwise. If the defendant uses the work

authored by the plaintiff or provides its copies to any person

without license from the plaintiff, he would be infringing the

copyright of the plaintiff in the work authored by him, since

exclusive rights to do such an act is conferred upon the

owner of the copyright alone. The defendant has no legal

right to transfer the literary work authored by the plaintiff to

be used by any other person either for consideration or

otherwise and any such act on his part would amount to

infringement of the copyright which the plaintiff holds in the

aforesaid works.

7. The plaintiff, therefore, is entitled to injunction

restraining the defendant from infringing the copyright of

the plaintiff in the literary work authored by him including

the computer source Code of the Software Quizpro

Wordpress plugin, by using the same himself,

transferring/assigning it to any other person, making

and/or providing its copies to any person, reproducing it in

any form selling or giving it on rent and distributing,

transmitting, publishing or disclosing the same to any

person or in any other manner.

8. It has come in evidence that a lot of personal

information of the plaintiff, his mother and his cousin was

also stored in the computer which the defendant snatched

from him. This information included vital financial data

relating to bank account of the mother of the plaintiff and

credit card account of his cousin, all of which has potential

of being misused. The computer stolen by the defendant

also contained private messages and personal photographs

of the plaintiffs with his friends and colleagues which he

would not like to share with any outsider including the

defendant. The privacy of the plaintiff has already been

invaded by the defendant snatching the laptop containing

the above-referred private information since he thereby had

access to that private information of the plaintiff. The

defendant has no right to part with that information to any

person and thereby give them an opportunity to invade the

privacy of the plaintiff. The plaintiff, therefore, is entitled to

an injunction restraining the defendant from parting with

the aforesaid information to any person as also from using it

in any manner.

The defendant has no legal right to retain the

laptop of the plaintiff which contained data which is of vital

importance and immense value to him. He is bound in law

to return the aforesaid laptop to the plaintiff without

destroying or erasing the information stored therein.

9. Coming to damages, as noted earlier, the laptop

stolen by the defendant contained vital and important data

as also the computer programme authored by the plaintiff.

The data stored in the laptop stolen by the defendant

included text excel file of 212 e-Pins which can be sold for

Rs.3,600/- per Pin and, therefore, is worth Rs.7,63,200/-.

The plaintiff must have suffered a lot of mental agony and

anxiety on account of theft of the computer programme

authored by him as well as all important data which was

stored in the laptop. He would always remain apprehensive

and live under a constant fear that the data which he had

stored in the laptop may be misused either by the defendant

or any other person who is able to have access to it, causing

substantial financial loss to him besides mental trauma,

agony and anxiety, which he is beyond to suffer in case that

data is used. The anxiety and mental trauma of the plaintiff

on account of his being deprived of the work authored by

him needs to be appreciated taking into consideration the

tremendous effort which he must have made in developing

that computer programme.

10. The right to privacy has been recognized as a

valuable right of an individual which is implicit in his right

to life and liberty which is guaranteed by Article 21 of the

Constitution. The right of privacy does encompass and

afford protection of personal intimacies of family, marriage,

friendship and other matters which are of a private nature.

It is a right to be let alone and everyone is entitled to

safeguard his privacy irrespective of the kind of life he is

leading. No one has a right to peep into the private life of

another person without his consent and if he does so, he

would be violating the right to privacy of the person

concerned and would be liable to pay damages in an action

under the law of torts. The right to privacy has also been

recognized by the European Convention of Human Rights,

Article 8 of which provides that everyone has the right to

respect for his private and family life, his home and his

correspondence. Even a public authority has no right to

interfere with his privacy except in accordance with law and

except to the extent it is necessary in the interest of national

security, public safety and public order.

Monetary or pecuniary compensation is widely

recognized as an appropriate and effective remedy for

infringement of right to privacy, whether by State or by

private individuals.

11. Though Section 43 of the Information Technology

Act, 2000 provides for payment of damages by way of

compensation in case of theft of a computer source Code

used for a computer resource with an intention to cause

damage, for accessing or securing access to a computer or

computer resource as well as destroying, deleting or altering

any information stored in a computer resource, it does not

provide for payment of damages for theft of data other than

the computer source Code used for a computer resource.

Hence, the jurisdiction of a Civil Court is not excluded

under Section 61 of the Act.

ORDER

For the reasons given in the preceding paragraphs,

a decree for permanent injunction is passed restraining the

defendant from infringing the copyright of the plaintiff in the

"literary works" authored by him including the computer

source code of the Software Quizpro Wordpress plugin by

using the same himself, transferring/assigning it to any

other person, making and/or providing its copies to any

person, reproducing it in any form, selling or giving it on

rent and distributing, transmitting, publishing or disclosing

the same to any person or in any other manner. He is also

restrained from parting with or disclosing the information of

the defendant, his mother and his cousin brother stored in

the laptop snatched by him from the plaintiff to any person,

as also from using it in any manner whatsoever. A decree

for recovery of Lenovo laptop of the plaintiff bearing model

number SL4102842 A47 with additional 2 GB RAM and

carry case S.No. LRTRVA4 or in the alternative for recovery

of Rs.34,100/- is also passed in favour of the plaintiff and

against the defendant. This part of the decree would

however, be subject to payment of requisite Court Fees on

the amount of Rs.34,100/-. A decree for damages

amounting to Rs.10 lakh is also passed in favour of the

plaintiff and against the defendant. The plaintiff will also be

entitled to pendent lite and future damages @ 6% p.a. on

the aforesaid amount of Rs.10 lakh, in addition to

proportionate costs of the suit.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE SEPTEMBER 05, 2011 'vn'/sn'