Delhi High Court
Msc. Software Corporation & Anr vs S. Ramanathan & Anr on 20 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th November, 2018
+ CS(COMM) 1675/2016 & IA No.16124/2016 (u/O XXXIX R-1&2
CPC).
MSC. SOFTWARE CORPORATION & ANR ..... Plaintiffs
Through: Mr. Shantanu Sahay and Mr. Aasish,
Advs.
versus
S. RAMANATHAN & ANR ..... Defendants
Through: Mr. K.V. Balakrishnan, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiffs namely MSC. Software Corporation and MSC Software
Corporation India Pvt. Ltd. have sued for permanent injunction restraining
the two defendants namely S. Ramanathan and Automotive Test Systems of
which Mr. S. Ramanathan is the proprietor, from infringing the ADAMS
2014 software and the various versions of the said software of the two
plaintiffs and for ancillary reliefs.
2. The suit came up first before this Court on 23rd December, 2016 when
summons thereof and notice of the application for interim relief were issued
to the defendants but no ex parte relief granted.
3. The two defendants have filed the written statement inter alia stating
that they have never used the ADAMS software for carrying out any of their
business activities at any point of time and do not permit anyone in their
office to use or download pirated/unlicenced software and the suit is liable to
be dismissed. It is further pleaded (i) that the defendant no.2 Automotive
Test Systems is not the sole proprietary of defendant no.1 Mr. S.
CS(COMM) No.1675/2016 Page 1 of 5
Ramanathan but is a partnership firm; (ii) that the defendants were surprised
to receive a notice on behalf of the plaintiffs preceding the suit about
unauthorised use of software of the plaintiffs in the year 2016 and on
investigation found that the alleged ADAMS software was never used in
their office to carry on any business activity; unauthorised use of the said
software of the plaintiffs was however found by one employee of the
defendants and which employee was directed to immediately delete the
software from the computer and the said software was deleted; (ii) such
unauthorised use of the software was found to be on the computer system
normally used by the trainees in the office of the defendants and which was
used without any knowledge or consent of the defendants; (iii) that it initially
appeared that some trainee students in the office of the defendants
unauthorizedly downloaded the software; and, (iv) that the defendant
received a letter dated 12th October, 2016 from one of it's employees who in
the said letter stated that he had downloaded the ADAMS software to help
one trainee student with his college project and clarified that he never used
the said software to carry out any office assignment.
4. The plaintiffs have filed a replication to the aforesaid written
statement. Admission/denial of documents has been completed and the suit is
ripe for framing of issues and for consideration of the application for interim
relief.
5. In view of the stand aforesaid of the defendants in their written
statement, I have enquired from the counsel for the defendants, whether the
defendants intend to use the software of the plaintiffs and/or whether the
CS(COMM) No.1675/2016 Page 2 of 5
defendants are willing to suffer a decree for injunction as sought by the
plaintiffs.
6. The counsel for the defendants states that the defendants, in the course
of their business, have no need for the software of the plaintiffs and without
admitting any of the claims of the plaintiffs are willing to suffer a decree for
permanent injunction as sought in prayer paragraph 51(i) of the plaint dated
21st December, 2016.
7. On further enquiry it is informed that besides the defendant no.1 Mr.
S. Ramanathan, Mr. Sandeep Sharma is the other partner of the defendant
no.2.
8. I have next enquired from the counsel for the plaintiffs that once the
defendants are so ready, what other relief remains.
9. The counsel for the plaintiffs states that the plaintiffs are entitled to
recover damages from the defendants. Attention is invited to page 33 of the
Part-III file, being the e-mail dated 1st September, 2016 from the plaintiffs to
the defendants, where the plaintiffs had given two options to the defendants
i.e. either to take a licence from the plaintiffs on payment of licence fee of
Rs.92,37,600/- to the plaintiffs for one licence or to pay Rs.76,98,000/- to the
plaintiffs for past unauthorised use of the software.
10. The plaintiffs, without proving that the defendants have earned from
infringement, can neither force the defendants to take a licence nor can claim
any damages from the defendants. I have thus asked the counsel for the
plaintiffs, what is the plea and/or proof that the defendants have
commercially benefited from the infringement.
CS(COMM) No.1675/2016 Page 3 of 5
11. The counsel for the plaintiffs states that the very fact that there is an
infringement entitles the plaintiffs to damages. The counsel has in Court,
handed over an extract of details regarding defendants' use of plaintiffs'
software between 25th March, 2016 to 1st July, 2016 under an Index of
Documents dated 20th November, 2018 and which is taken on record only for
the present purpose (as otherwise the stage for filing documents is long past
gone) and contends that the same records the duration of unauthorised use of
the software of the plaintiffs by the defendants.
12. I have however again asked the counsel for the plaintiffs, what is there
for the plaintiffs to prove that the defendants have put such use, even if any,
to commercial benefit, to entitle the plaintiffs to recovery of any damages.
13. The counsel for the plaintiffs states that an adjournment be granted to
enable him to take instructions from the clients.
14. Considering the fact that the defendants are agreeable to suffer a
decree for injunction and further considering the fact that the plaintiffs till
date are not clear as what they will prove even if their suit were to be kept
pending and were to be put to trial on the ancillary reliefs claimed by the
plaintiffs, I am of the view that no purpose will be served in putting this suit
to trial. Trial has to be in proof of pleadings and documents and when there
are no pleadings and/or documents to suggest commercial benefit to the
defendants, this Court cannot permit a wild goose chase. Interest of justice
will be served by compensating the plaintiffs with costs of the suit. I am of
the view that the plaintiffs are entitled to costs of the suit since there is
admitted infringement, even though without admitting the rights of the
plaintiffs, in the office of the defendants though the defendants have offered
CS(COMM) No.1675/2016 Page 4 of 5
explanation therefor. It is also felt that if issues are to be framed qua the
claim for damages, then issues as to entitlement of the plaintiffs to right in
the software will also have to be framed and which would lead to a full-
fledged trial.
15. Accordingly, it is deemed expedient to dispose of this suit by passing
a decree in favour of the plaintiffs and against the defendants, including
against the defendant no.2 as a partnership firm, of permanent injunction in
terms of prayer paragraph 51(i) of the plaint dated 21st December, 2016, with
costs equal to value of the court fees paid on the plaint and professional
fee/expenses in the sum of Rs.1,50,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 20, 2018
'pp'
