Delhi High Court
Sysdiva Consultants Pvt Ltd & Anr vs Fsl Software Technologies Ltd & ... on 27 September, 2016
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 27th September, 2016
+ CS(OS) 1589/2015
SYSDIVA CONSULTANTS PVT LTD & ANR ..... Plaintiffs
Through : Ms. Kruttika Vijay, Advocate
versus
FSL SOFTWARE TECHNOLOGIES LTD & ORS. ..... Defendants
Through : Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Arjun Singh Bhati,
Advocate for the defendant along Ms.
Tanvi Jain, Law Officer of defendant
company.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
The plaintiffs have filed the present suit restraining groundless threat of
infringement proceedings, declaration of non-infringement of
copyright, restraining tortious interference and restraining defamatory
damages, etc. under Section 60 of the Copyright Act.
2. While issuing summons in the suit, on 26.05.2015 this Court had
passed the following order:
"IA 11509/2015
Issue notice to the defendants by ordinary process and speed
post, returnable on the date fixed above.
This is an application under Order 39 Rule 1 and 2 CPC
seeking ex parte injunction.
The accompanying plaint is filed seeking an order of
permanent injunction to restrain the defendants from carrying out
any action of groundless threats. Other connected reliefs are also
sought. It is averred that plaintiff No. 2 is an ex-employee of
defendant No.1 Company said to have resigned on 31.10.2014.
The plaintiffs state that it offers for license software „SourcApp‟
which is an original and new software said to have been created
by plaintiff No.2. It is averred that defendant No.1 has issued
threats for initiation of legal proceedings on the ground that the
said software is a copy of the software of defendant No.1. Based
on this, a legal notice was issued to the plaintiffs.
Communications are also being addressed to the customers of the
plaintiffs allegedly defaming the plaintiffs. The plaintiffs
apprehend that incalculable damage will be caused to the plaintiff
on account of defamatory communications sent to its potential
customers.
In my view the plaintiffs have made out a prima facie case
in their favour. Balance of convenience is also in favour of the
plaintiffs. The defendants are restrained from addressing or
sending any defamatory communication to the customers or
potential customers of the plaintiff till further orders. The
plaintiff to comply with order 39 Rule 3 CPC within three days
from today.
Dasti."
3. Defendants entered appearance and sought modification of the interim
order and brought to the notice of the Court that the defendants had
already filed an infringement suit with due diligence in respect of the
copyright claimed by the defendants. Relying on proviso to Section 60
of the Copyright Act, it was urged by the learned counsel for the
defendants that the present suit would now not be maintainable.
4. Today learned counsel for the plaintiffs submits that in addition to
prayer under Section 60 of the Copyright Act, additional prayers have
also been made and thus, the present suit would be maintainable. The
plaintiffs have sought following prayers:
"a. An order for permanent injunction restraining the defendants,
their subsidiaries, directors, wholesalers, distributors, partners
and/or other proprietors, as the case may be, their officers,
servants and agents by circulars, advertisements or by
communications, oral or in writing addressed to the plaintiffs
or any other person, or by any other means from making
groundless threats of action for copyright infringement;
b. An order of declaration that the plaintiffs‟ program SourcApp
does not infringe the copyright of the defendants;
c. An order for permanent injunction restraining the defendants,
their subsidiaries, directors, wholesalers, distributors, partners
and/or other proprietors, as the case may be, their officers,
servants and agents by circulars, advertisements or by
communications, oral or in writing addressed to the plaintiffs
or any other person, or by any other means leading to tortious
interference in plaintiffs‟ business;
d. An order for permanent injunction restraining the defendants,
their subsidiaries, directors, wholesalers, distributors, partners
and/or other proprietors, as the case may be, their officers,
servants and agents by circulars, advertisements or by
communications, oral or in writing addressed to the plaintiffs
or any other person, or by any other means, from making
statements which are defamatory and/or which are in the
nature of injurious falsehood;
e. An order directing the defendants to pay a sum of
Rs.21,00,000/- towards damages suffered by the plaintiff; and
f. An order awarding to the plaintiff the costs of this suit."
5. At this stage, it was put to Mr. Sanjeev Sindhwani, learned Senior
Counsel appearing for the defendants as to whether the defendants are
willing to make a statement in favour of the plaintiffs with regard to
prayers „c‟ and „d‟. In turn, Mr. Sindhwani has submitted that the
plaintiffs should give up its relief in prayer „e‟ with respect to damages.
The Law Officer of the defendants company is present in Court. She
has obtained instructions from the Director of the defendants company.
She states that the defendants have not and will not cause any tortious
interference in the plaintiffs business by publishing any circulars,
advertisements, communications or any defamatory statement. Learned
counsel for the plaintiffs, in turn, gives up the prayer „e‟ of the present
plaint.
6. The defendants would be bound by the statement made by the Law
Officer present in Court today, which shall be treated as an undertaking
to the Court. Any violation would be viewed strictly.
7. As prayed, the suit is disposed of in above terms.
8. Since the suit has been disposed of prior to the stage of framing of
issues, plaintiffs would be entitled to refund of half of the court fee.
IAs.11509/2015(u/O XXXIX Rule 1 & 2 CPC), IA.13323/2015(u/O
XXXIX Rule 4 CPC)
9. Interim orders stand vacated.
10. The applications stand disposed of.
IA.22343/2015(u/s 151 CPC)
11. The application stands disposed of in view of the present suit having
been disposed of.
G.S.SISTANI, J
SEPTEMBER 27, 2016
pst
