Delhi High Court
Campus Eai India Pvt. Ltd. vs Neeraj Tiwari & Ors on 29 March, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th March, 2019.
+ CS(OS) 482/2016 & IAs No.11735/2016 (u/O XXXIX R-1&2 CPC),
11736/2016 (u/O XXVI R-9 CPC), 7876/2017 (u/S 151 CPC),
17171/2018 (u/S 151 CPC) & 17172/2018 (u/O XIII-A CPC)
CAMPUS EAI INDIA PVT. LTD. .... Plaintiff
Through: Ms. Anuradha Salhotra, Ms. Achal
Shekhar and Mukul Kochar, Advs.
Versus
NEERAJ TIWARI & ORS ......Defendants
Through: Mr. Ankit Relan, Ms. Ekta Sharma
and Mr. Vishesh Kumar, Advs. for
D-1.
Ms. Julien George, Ms. Anu Paarcha
and Mr. Arjun Gadhoke, Advs. for D-
2 to 5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff instituted this suit against defendants No.1 to 6 namely
(i) Neeraj Tiwari; (ii) Girish Kumar; (iii) Shivendra Kaushik; (iv) Raoul
Ghosh; (v) Orryworx Private Limited; and, (vi) Bigrock Solutions Limited,
pleading (a) that the plaintiff is the exclusive subcontractor and successor in
interest to CampusEAI Inc., a software information technology services and
consulting company incorporated under the Laws of Ohio; (b) that the
plaintiff has developed and markets a single sign-on solution for institutions
of higher education in the United States and other countries; (c) that the
plaintiff‟s single sign-on solution known as QuickLaunch SSO, is a cloud
based, self-service, Identity-as-a-Service application integration platform
CS(OS) 482/2016 Page 1 of 31
that helps schools, colleges and universities to integrate their applications
irrespective of their integration protocol; (d) that the plaintiff has invested
considerable money and resources in developing goodwill and has spent
millions of dollars in formulating, developing, marketing/advertising and
implementing its trade secret and copyright protected QuickLaunch SSO
application; (e) that the defendant No.1, at the time of institution of the suit
was still an employee of the plaintiff and the defendants No.2 to 4 are ex-
employees of the plaintiff; (f) that the defendants No.1 to 4 have stolen the
plaintiff‟s copyright, trade secret, technical proprietary, confidential
information and Intellectual Property in respect to the aforesaid software
from the plaintiff‟s computers, databases and development and repository
sites; (g) that after extracting the information, the defendants packed it as
their own under the name Loginology, to try and sell the same to the
plaintiff‟s current and prospective customers/clients; (h) that the defendants
No.2 to 4 are also promoters/directors of defendant No.5 incorporated on 28th
June, 2016 and running the website www.loginology.com which offers an
identical application to the plaintiff‟s QuickLaunch SSO application; (i) that
the defendant No.6 is the Registrar of the domain name
www.loginology.com; (j) that the defendants No.1 to 4, at the time of their
employment with the plaintiff were working at a senior level under the
confidentiality and employment agreements including the terms of the
plaintiff‟s Employee Handbook and were directly and actively involved in
development of the subject software for and on behalf of the plaintiff; (k)
that the defendants, under their agreements with the plaintiff were not
entitled to take any other employment while working with the plaintiff and
the agreement also had a non-compete clause restraining the defendants from
CS(OS) 482/2016 Page 2 of 31
taking up competing assignments for a period of two years, after leaving the
employment of the plaintiff; (l) that in or around February, 2016, the
defendant No.1 started taking unauthorised leaves and on account whereof
disciplinary proceedings were initiated against the defendant No.1 and the
salary of the defendant No.1 for the month of June, 2016 withheld; (m) that
on account of defendant No.1 absconding from employment, the plaintiff
took back the company issued laptop assigned to the defendant No.1 as part
of his duties as a Software Developer; (n) that on reviewing the data on the
said laptop, some applications recording nefarious activities of the
defendants as herein below mentioned were found; (o) that it was discovered
that the defendants No.1 to 4, while still in employment of the plaintiff
started working on www.loginology.com and conspired to steal and
subsequently stole the confidential data as well as the copyright protected
and Intellectual Property of the plaintiff, to set up a rival and competing
company; (p) that it was also discovered that after the defendants No.2 to 4
had left the employment of the plaintiff, the defendant No.1 while still in
employment of the plaintiff passed on the sale strategy / operating method
relating to QuickLaunch SSO to the defendants, to enable them to sell their
competing products; (q) that the conduct aforesaid of the defendants No.1 to
4 is in breach of their agreements with the plaintiff and infringes the
copyright of the plaintiff; (r) that a comparative analysis of the works of the
plaintiff and the defendants shows that the defendants‟ work is a copy of the
plaintiff‟s work; and, (s) that the defendants have used QuickLaunch SSO
software and its source code developed by the plaintiff.
2. The plaintiff has thus sought the reliefs of, (I) permanent injunction
restraining the defendants No.1 to 5 from divulging the confidential material
CS(OS) 482/2016 Page 3 of 31
of the plaintiff‟s technology, trade secrets, methods and processes, market
sales, list of clients, accounting methods and competitive data to third
parties; (II) permanent injunction restraining the defendants No.1 to 5 from
directly and indirectly approaching the plaintiff‟s current and prospective
clients, employees and suppliers for soliciting business; (III) permanent
injunction restraining the defendants No.1 to 5 from reproducing/printing,
publishing, copying, storing/installing any pirated/unlicensed software of the
plaintiff and its various versions and from infringing the copyright of the
plaintiff in original literary work titled QuickLaunch SSO; (IV) mandatory
injunction directing the defendants to produce the contents of their websites
and hand over their source code to this Court; (V) mandatory injunction
directing the defendant No.6 to pull down the website www.loginology.com
or any other website controlled by defendants No.1 to 5; and, (VI) for
ancillary reliefs.
3. The suit came up first before this Court on 22 nd September, 2016,
when summons of the suit and notice of the application for interim relief
were ordered to be issued to the defendants for 29th September, 2019.
4. The defendants No.2 to 5, on 29th September, 2016 stated that they had
not indulged in any of the acts of which they had been accused of and had no
intention also to indulge therein for a period of two years from the date of
cessation of their respective employments with the plaintiff and were ready
to be bound by their said statement. They also stated that the software which
had been developed by them was an entirely different software from the
software of the plaintiff and they were willing to have the two softwares
examined from an independent expert to whom the matter could be referred.
CS(OS) 482/2016 Page 4 of 31
5. The defendant No.1 also on 29th September, 2016 stated that he had no
objection to the decree for injunction as claimed being passed against him
also, save qua the allegations of copyright infringement.
6. Accordingly, on 29th September, 2016, a decree was passed in favour
of the plaintiff and, against the defendants No.2 to 5 in terms of prayer
paragraph 40 (a) to (f) of the plaint; and against the defendant No.1 in terms
of prayer paragraph 40 (a), (b), (e) and (f) of the plaint, with the clarification
that the same shall operate for a period of two years only from the respective
dates of cessation of employment of each of the defendants No.1 to 4 with
the plaintiff.
7. On 29th September, 2016, with the consent of the counsels, it was
further directed that the plaintiff as well as the defendants No.2 to 5 submit
their respective source code in a sealed envelope to the Director, IIT, Delhi,
as an independent expert, to evaluate the two softwares within one month of
receipt of reference to report whether there is any similarity or infringement
of copyright between the two softwares or whether the two are independent
creation. The Director, IIT, Delhi was further requested to nominate an
expert competent to do the needful and the representatives of both parties
directed to meet with the Director, IIT, Delhi or the said expert for working
out modalities, if any required in this regard. It was further agreed that the
source code submitted to the expert would be as on 22nd September, 2016.
8. Accordingly, filing of the written statement by the defendants qua the
remaining reliefs was deferred till receipt of report.
9. On further enquiry, the counsel for the defendants stated that the
defendants had no objection to the reference to the expert being in terms of
CS(OS) 482/2016 Page 5 of 31
Section 20 of the Indian Evidence Act, 1872. The counsel for the plaintiff,
on similar query, stated that she will obtain instructions in this regard and
inform the Court.
10. The expert report from IIT, Delhi was not received within the time
envisaged and vide order dated 2nd November, 2017, it was directed that in
the meanwhile the written statement qua the other reliefs claimed by the
plaintiff be filed.
11. A report dated 19th September, 2018 under cover of letter dated 22nd
September, 2018 has since been received from IIT, Delhi. The plaintiff has
filed IA No.17171/2018 by way of objections to the said report and the
defendants No.2 to 5 have filed IA No.17172/2018 under Order XIII-A of
the Code of Civil Procedure, 1908 (CPC) seeking summary judgment of
dismissal of suit on the basis of the said report.
12. The counsel for the plaintiff and the counsel for the defendants No.2 to
5 were heard on 28th March, 2019 and have further been heard today with
reference to the said report, the objections of the plaintiff thereto and the
possibility of a summary judgment in the light of the said report.
13. Though the report of the Three Members Committee constituted, in
pursuance to the direction of this Court by the Director, IIT, Delhi, of two
Professors and one Assistant Professor of Department of Computer Science
and Engineering, IIT, Delhi comprises of 19 pages and the Annexure thereto
comprises of 262 pages but for the purposes of the present order/judgment
suffice it is to reproduce the following passages thereof:
CS(OS) 482/2016 Page 6 of 31
"Abstract
We present our final comprehensive report from our analysis on
Source-Code Plagiarism Dispute in terms of the order passed
by the Hon‟ble Delhi High Court, in the No.CS(OS) 482/2016
titled as M/s Campus EAI India Private Limited (Plaintiff) and
Neeraj Tiwari & Ors (Defendant). Our studies indicate that
there are no instances of plagiarism found in defendant‟s code.
We have compared the softwares on the basis of structural and
flow similarities therein while also accounting for programming
logic and methodology for detecting plagiarism.
1. Introduction
Plagiarism in printed texts is a well understood phenomena and
there are numerous computer-assisted tools and techniques
which could be used to detect plagiarism in printed texts.
However, plagiarism in software is relatively new and an active
area of research. Software plagiarism is significantly different
in nature from plagiarism of other literary/technical works.
According to Parker and Hamblem [11], software plagiarism is
defined to be an act through which a plagiarized program is
produced from an original program by applying a number of
routine program transformations. We, in this report, not only
subscribe to the definition of software plagiarism from [11], but
also refine it to cover similarity in semantic structure and
information processing methodology between softwares. If the
softwares were developed independently it is highly improbable
for them to have the same structure and flow. In other words,
changing the code structure and flow (code-refactoring) while
maintaining the same functionality is a laborious and a difficult
exercise (in terms of time and effort) requiring high degree of
skill.
A central challenge in automated or manual detection of
software plagiarism is that while it is fairly straightforward to
detect simple modifications of software (such as variable
renaming), it is difficult to detect plagiarism orchestrated
through function reordering and refactoring. Plagiarism at
CS(OS) 482/2016 Page 7 of 31
such deep levels can trip any trained eye or a naïve automated
plagiarism detection tool.
The two disputing parties, M/s Campus EAI India Private
Limited and Neeraj Tiwari & Ors, have both implemented their
backend processing in Java and their frontend processing in
CSS (Cascading Style Sheets) and Javascript. We have
analyzed the source-codes as a pair-wise comparison between
files from the two softwares.
.....While these tools can assist in highlighting similarities in
the source codes, a similarity does not imply plagiarism and
hence, these tools cannot completely automatically detect
plagiarism. A further analysis and manual detailed
examination is required to arrive at a decision whether or not
plagiarism exists.
Our assessments reveals no plagiarism in the softwares.
While the automated tools highlighted 577 instances of
similarities between the two softwares, of varying number of
lines-of-codes, all of these cases were assessed as false
positives, as they were either open-source codes (see Section 3)
or they showed structural similarity in segments that have a
standard representation.
Detailed Results: The detailed analysis data and analysis
results are provide in an annexure (262) pages.
......
Most softwares‟ source codes are not publicly available and
only the person, team or organization that created the source
code has the legal right to modify or reuse them. Such
softwares are called "proprietary" or "closed source"
softwares. On the other hand "open-source" softwares are
distributed along with their source codes. An open-source
software can be borrowed, modified and redistributed. Many
open-source software are released with their own licensing and
copyrights with the sole purpose of further qualifying the
borrowing, modification and re-distribution of open-source
code under various settings (commercial, personal, or
academic) pertaining to the use of it.
The right over a proprietary source code is held by the
owner company. If a structural and intentional similarity is
detected over the company‟s proprietary code segments, a case
of plagiarism is recorded. However, in case the source code
segments detected as similar are identified as open-source, the
similarity would not imply plagiarism as none of the two
companies hold the license or copyright over the code segment.
Our assessment for possible plagiarism takes into
account the proprietary or open-source status of the source
code segments, as discussed in detail in Section 6.2.
6. Comparison Method
To detect possible plagiarism we performed the following four
steps:
1. Assessment of authenticity of the submitted source
code,
2. Identification of open-source and proprietary code in
software,
3. Similarity detection in proprietary code,
4. Examination of „similar‟ code for plagiarism.
These steps have been described in the forthcoming
subsections.
6.1 Step 1: Assessment of authenticity of the source code
.......
In our opinion the data did not suggest any anomaly in
the software development pattern; this is because the commit
frequency was fairly regular. Based on the above analysis, in
our opinion, the source code version submitted to us is
authentic.
6.2 Step 2: Identification of open-source and proprietary
code in software
As discussed in Section 3, it is necessary to identify the open-
source segments in the source code of the two companies as
similarity detected over open-source code segments cannot be
recorded as a case of plagiarism. The open-source segments in
the source codes of the two companies, thus, need to be
excluded from our analysis process to avoid false results of
plagiarism detection. A comprehensive study of the two
software source codes was conducted that revealed use of
various open-source source codes and dependence over various
open-source libraries, listed in annexure Section 1 (annexure
Page 1).
......
6.4 Step 4: Examination of 'similar' code for plagiarism
......
Certain code constructs have a standard structure that
cannot vary even with distinct developers. Additionally, various
programming notations have a standard format and style. Such
cases can result in false positives from the similarity detection
tool. We found cases of function calls and library imports
which were classified as similar by the tools, but were false
alarms. We also found cases of declarations and hierarchical
tags (in case of CSS files) that have a standard structure and
were thus detected as similar code segments.
.......
Another class of false positives in the similarity detection
tool‟s results come from similarity detected in open-source code
segments. Based on the analysis discussed in Section 6.2, the
source code segments detected as open-source and all source
code segments belonging to open-source libraries that were
detected as similar cannot be classified as instances of
plagiarism. However, it is possible that the defendant may
include proprietary code segments of plaintiff‟s source code in
a open-source licensed file. Our analysis ensured that we do
not overlook the possibility of such cases.
........
7. Results
We detected 158 instances of similarity in the backend source
code and 419 instances of similarity in the frontend source
code, i.e., a total of 577 instances of varying sizes of code
segments and varying percentage match (between 1% to 99%).
However, none of the 577 instances can be recorded as a case
of plagiarism as discussed further.
Out of the 577 instances, 433 instances were observed in
code segments that were verified as open-source code segments
carrying a license or a copyright where the license terms allow
companies to import the code. The 433 instances can be put in 2
categories, as discussed in Section 6.4:
.......
..... The Loginology SSO source code java, css and js files have
99,374 lines-of-code and Quicklaunch SSO source code java,
css and js files have 1,69,913 lines-of-code. These instances,
thus, constitute a very small portion of the source code that is
0.27% of Loginology SSO‟s source code and 0.19% of
Quicklaunch SSO‟s source code.
......
All the code segments in Loginology SSO‟s source code
that contained instance(s) of similarity have been examined and
classified as un-plagiarized. The same can be seem in table 1
as the count of instances under column „R‟ (Remaining) is zero.
Table 1: Similarity and plagiarism report of Loginology
SSO source code files
Similar Open- Imports False Remaining
Instances Open-source source Only Positives (S-(O+I+F))
(A+B) (Structural
Similarity)
Category A Category B
(S) (O) (I) (F) (R)
(A) (B)
files
(.java)
files
(.css, .js)
8. Conclusion
IIT Delhi was given the task of detection of software
plagiarism in the source codes of M/s Campus EAI India
Private Limited (Plaintiff) that is, Quicklaunch SSO, and
of Neeraj Tiwari & Ors (Defendant), that is, Loginology
SSO.
It was claimed that the source codes given to IIT Delhi
for analysis have not been modified after 22 September
2016.
We verified the claim that the source code of defendant
has not been modified after 22 September 2016 and
studied the development history for ensuring absence of
unusual patterns in development process, as discussed in
Section 6.1.
The source codes were compared for structural similarity
with the help of similarity detection tools SIM and MOSS,
as discussed in Section 6.3.
These automated tools reported 577 instances of
structural similarity.
Further analysis, as discussed in Section 5, revealed that,
out of the 577 instances, 433 instances were recognized
in open source code. All such similarity instances cannot
be classified as instances of plagiarism, as discussed in
Section 6.2.
Further, 123 instances only matched on import
statements. As the import statements have a standard
structure and do not perform any processing they were
ruled out.
The 21 instances were manually analyzed for plagiarism,
as discussed in Section 6.4.
After manual analysis it was concluded that the 21
instances of proprietary code detected as structurally
similar by the automated tools did not qualify as
instances of plagiarism. The details of the same are
discussed in Section 6.4 and 7.
Concluding Remark: In our opinion there is no evidence of
plagiarism between the two source codes. We also did not
detect any meaningful case of unusual activity in the
development pattern or any case of tampering with the
development history. We can conclude with a high degree of
confidence that the proprietary source codes from M/s Campus
EAI India Private Limited that is, Quicklaunch SSO, and of
Neeraj Tiwari & Ors, that is, Loginology SSO are not
plagiarized."
(emphasis added)
14. The plaintiff has objected to the report pleading:
"a. Firstly, assuming (but not admitting) to the fact that Open
Source codes have been used in both the codes for the rival
softwares, reliance needs to be placed on the number of
instances in which Open Source codes have been used in both
the softwares, in order to construe whether the rational order of
the two rival codes is the same or not.
b. Secondly, the Open Source codes used by both the parties need
to be examined, as the Open Source codes used by the Plaintiff
have been re-engineered and tailored to suit the needs of the
Plaintiffs software and the same have eventually been
bootstrapped by the Defendants.
c. Thirdly, the order of the Import Structure of the two rival codes
must also be examined in depth, to determine whether the
structure of both the codes is similar, as the Import Structure of
the Plaintiffs code has been tailor made for the Plaintiff‟s
software.
d. Fourthly, all of the 433 instances of the Open Source codes and
the import structure need to be made known and scrutinized to
determine the similarities between the two rival codes."
15. On the contrary, the counsel for the defendants No.2 to 5 contends that
once a team of experts from an esteemed institution like IIT, Delhi has
concluded that there is no plagiarism by the defendants No.2 to 5 and no
infringement of plaintiff‟s copyright in its asserted software, no other issue
survives and there is no other compelling reason why the claim of the
plaintiff should not be disposed of before recording of oral evidence.
16. The counsel for the plaintiff has argued that the report erred in
excluding from analysis the open source code segments found in the source
code of the plaintiff as well as the defendants. It is explained that open
source software programs are programs which are available to all, without
any licence or permission for use thereof being required to be taken. It is
further explained that such open source code software programs are like a
dictionary and just like no plagiarism can be attributed to use of words from
a dictionary, no plagiarism can be attributed to use in the source code of
open source code segments as rightly found by the experts also. It is
however further contended that just like there is copyright in the chronology
in which the words from the dictionary are arranged in framing a sentence or
a passage, similarly there is copyright in the chronology in which the open
source code segments are used in a source code. It is contended that the
report erred in not analyzing the chronology in which the open source code
segments are used in the source code of the plaintiff and the defendants and
which analysis, if had been carried out, would have demonstrated plagiarism.
It is argued that trial is required in the suit, to grant an opportunity to the
plaintiff to, by examining its experts, prove so.
17. It is further emphasised by the counsel for the plaintiff that besides the
433 open source segments, the report finds 21 other proprietary segments
and a total of as many as 577 similarities.
18. I have enquired from the counsel for the plaintiff, whether the plaintiff
represented to the experts aforesaid to carry out the analysis of chronology.
19. The counsel for the plaintiff draws attention to the letter dated 20 th
February, 2017 of IIT, Delhi to this Court, annexed to IA No.7876/2017 filed
by the plaintiff seeking transfer of the task of conducting source code
examination from IIT, Delhi to any other independent Government
body/Institute such as National Institute of Technology (NIT) and Central
Forensic Science Laboratory (CFSL), informing this Court that the progress
in the matter had been stalled due to demand of the plaintiff that the expert
committee must change its scope of work to include many additional
analysis which the committee felt would be time consuming and not
necessary in the initial phase and that such analysis could be ordered by the
Court, if the initial code comparison analysis results are inconclusive. The
counsel for the plaintiff contends that the plaintiff filed IA No.7876/2017 for
directions of this Court in this respect but the said application was disposed
of, without issuing any fresh direction.
20. However, a perusal of IA No.7876/2017 shows the plaintiff to have
pleaded therein that the plaintiff, on enquiry from other Government
institutes capable of conducting detailed source code examination, had been
informed that the same would cost in the range of Rs.4 lacs to Rs.5 lacs only,
while IIT, Delhi was charging Rs.11.88 lacs and seeking more for a detailed
analysis. The plaintiff however, in the prayer paragraph of the said
application is found to have stated "It is respectfully submitted that the
Professional Cost and time indicated by the IIT Delhi is substantially higher
to conduct the source code examination. It is accordingly prayed that the
task of conducting the source code examination be transferred from the IIT
Delhi to any other independent government body/institute such as National
Institute of Technology, Delhi or CFSL (Central Forensic Science
Laboratory)".
21. I also find that on 22nd January, 2018, when the aforesaid IA
No.7876/2017 came up before this Court, the same was disposed of vide the
following order:
"It is agreed and recorded accordingly that the report which
has to be given by IIT Delhi will be in terms of the order dated
29.9.2016."
22. In view of the aforesaid contents of IA No.7876/2017 and the order
thereon, I am unable to agree with the contention of the counsel for the
plaintiff that the plaintiff had taken the objection as is being raised now,
prior to or at the time of examination by the appointed expert and on the
contrary find the plaintiff, in moving IA No.7876/2017 having been guided
by the higher costs being charged by IIT, Delhi and to which also the
plaintiff agreed on 22nd January, 2018. It thus cannot be held that the
objection raised now was raised during the agreed examination also.
23. The counsel for the defendants No.2 to 5 has argued that the parties
had consented to examination by the expert to cut short the trial and the
plaintiff cannot now be permitted to, notwithstanding such examination, still
want the suit to go on. It is also argued that the only objection of the
plaintiff was to the charges demanded by IIT, Delhi and which objection also
the plaintiff gave up. Attention in this regard is invited to the email dated
20th January, 2017 of the plaintiff annexed by the defendants No.2 to 5 to
their reply to IA No.7876/2018 aforesaid. It is contended that it is now not
open to the plaintiff to reiterate the same.
24. The counsel for the defendants No.2 to 5 also draws attention to the
replication of the plaintiff to the written statement of the defendants No.2 to
5 to contend that no such plea, as is being taken now by way of objections, is
taken therein.
25. The counsel for the defendant No.1 has also contended that the
plaintiff, in the plaint has not even disclosed the name of the author of the
source code in which the plaintiff claims copyright and has not pleaded that
its own source code contained open source code segments or that the
infringement was in sequence / arrangement of open source code segments.
26. In Hirachand Kothari Vs. State of Rajasthan 1985 (Supp) SCC 17 it
was the claim of the plaintiff/appellant that the State of Rajasthan, in relation
to a dispute as to valuation of a piece of land, had agreed to appointment of
the Town Planning Officer as the Assessor to assess the value of the land and
submit his report. The Town Planning Officer valued the land at
Rs.35,826.50p. However the State of Rajasthan disputed the said valuation.
The plaintiff/appellant instituted the suit for recovery of the amount at which
the Town Planning Officer had assessed and determined the valuation of the
land, pleading that the State of Rajasthan was bound thereby. The State of
Rajasthan contested the said suit inter alia pleading that it had never agreed
that the assessment or valuation made was to be final and binding on them
and that there was an error in principle in the assessment done/valuation
made. It was held:
"6. The main question raised is whether the report of the
assessor (Ext. 5) was "information" within the meaning of
Section 20 of the Evidence Act and therefore considered to be
an admission of the parties as to appraisement or valuation of
the disputed land at Rs 35,826.50 p. and such an admission
must operate as estoppel. Admissions may operate as estoppel
and they do so where parties had agreed to abide by them. The
word "information" occurring in Section 20 is not to be
understood in the sense that the parties desired to know
something which none of them had any knowledge of. Where
there is a dispute as regards a certain question and the Court is
in need of information regarding the truth on that point, any
statement which the referee may make is nevertheless
information within the purview of Section 20. The contention on
behalf of the State Government on the word "information"
occurring in this section is that the parties did not stand in need
of obtaining any information from D.N. Gupta and that at any
rate the State Government never agreed to abide by the
valuation made by him and therefore they were not bound by
the same inasmuch as the valuation made by him was not
conclusive as to the value of the subject-matter as between the
parties.
7. Section 20 of the Evidence Act reads as follows:
"20. Admissions by persons expressly referred to by party to
suit.--Statements made by persons to whom a party to the suit
has expressly referred for information in reference to a matter
in dispute are admissions."
Section 20 is the second exception to the general rule laid down
in Section 18. It deals with one class of vicarious admissions
that demand of persons other than the parties. Where a party
refers to a third person for some information or an opinion on a
matter in dispute, the statements made by the third person are
receivable as admissions against the person referring. The
reason is that when a party refers to another person for a
statement of his views, the party approves of his utterance in
anticipation and adopts that as his own. The principle is the
same as that of reference to arbitration. The reference may be
by express words or by conduct, but in any case there must be a
clear admission to refer and such admissions are generally
conclusive".
However in the facts of the said case, it was found that the State of
Rajasthan had not consented to the valuation.
27. Reference in the context of law on Section 20 of the Indian Evidence
Act, 1872 may also be made to Akhil Bhartiya Mahajan Shiromani Sabha
Vs. Dharamveer Mahajan (2008) 154 DLT 320, Anoop Madan Vs. Dena
Bank (2013) SCC OnLine Del 2097 and Takamol Industries Pvt. Ltd. Vs.
Kundan Rice Mills Ltd. 2017 SCC OnLine Del 6450.
28. Though the order dated 29th September, 2016 does not expressly
contain the consent of the plaintiff to the offer of the defendants of
examination of the two softwares by an independent expert but the tenor of
the order is consensual and as the subsequent orders also confirm; in any
case, on 22nd January, 2018 as aforesaid, it was agreed and recorded that the
report which had to be given by IIT, Delhi will be in terms of order dated
29th September, 2016. There is thus no iota of doubt that the reference for
information to IIT, Delhi was with the consent of the plaintiff as well as the
defendant.
29. The aforesaid was/is enough to bind the plaintiff as well as the
defendant to the information submitted by the expert and to dispose of the
suit in accordance therewith. However I had still on 29 th September, 2016
expressly enquired from the counsels whether they were agreeable to the
reference to the expert being in terms of Section 20 of the Indian Evidence
Act. While the counsel for the defendants had readily agreed, the counsel for
the plaintiff had sought time to obtain instructions.
30. I have enquired from the counsel for the plaintiff, whether the counsel
for the plaintiff at any subsequent time so informed the Court.
31. The counsel for the plaintiff replies in the negative.
32. The counsel for the defendants No.2 to 5 contends that though
undoubtedly in none of the subsequent orders/pleadings such consent of the
counsel for the plaintiff is recorded but at the same time, though the counsel
for the plaintiff had taken time to obtain instructions and inform the Court,
the failure to inform the Court should be deemed as consent. It is stated that
had the intention of the plaintiff been to be not bound by the report, the
counsel for the plaintiff would have informed so and which she did not. It is
argued that the plaintiff is also thus deemed to have agreed to the reference
being in terms of Section 20 of the Evidence Act.
33. I tend to agree with the counsel for the defendants. The plaintiff in a
commercial suit especially of the nature of infringement of copyright in the
source code of a software program, and adjudication whereof is of a highly
technical nature, cannot be permitted to be a fence-sitter. The plaintiff in
such a suit cannot be permitted to, after receipt of opinion of the expert, if in
favour, claim the same to be binding and if against, claim the same to be not
binding.
34. It cannot be lost sight of, that the defendants in this suit on the very
first date of appearance before this Court agreed to suffer a decree for
permanent injunction as sought and further offered to the examination of the
source code of the software program of the plaintiff and of the defendants to
be examined by an independent expert and also had no hesitation to make a
statement to be bound by the said report, even if against them and to suffer
the consequences of becoming liable for damages etc. therefor. It is not as if
the plaintiff was not agreeable to the aforesaid offer of the defendants. The
plaintiff also readily agreed thereto, being aware that the adjudication of the
dispute in any case would be ultimately falling in the domain of experts with
this Court also forming an opinion on the basis of such expert opinion.
Though the counsel for the plaintiff on 29th September, 2016 did not consent
to the reference to the expert being under Section 20 of the Evidence Act as
readily consented to by the counsel for the defendants, but it is not as if the
counsel for the plaintiff expressed any aversion thereto. All that transpired
was that though the defendants were present in the Court for their counsels to
readily take instructions, the plaintiff was not. Rather, the counsel for the
plaintiff expressly stated that she will inform. She did not inform to the
contrary. Therefrom, it is well-nigh possible that the defendants proceeded
with the evaluation by the expert, costs whereof even the plaintiff, claiming
itself to be established in the field, was finding to be exorbitant, on the
premise of the said finding of the expert putting an end to the litigation one
way or the other, without requiring the parties to incur expenditure on trial.
A litigant cannot be permitted to create such a situation. If the counsel for the
plaintiff had informed that the plaintiff was not agreeable to be bound by the
report, the defendants could have very well also reneged from their consent
to Section 20 of the Evidence Act or even to spending money on expert
opinion, even before filing their pleadings.
35. The counsel for the plaintiff has also drawn attention to pages 148 to
150 of Part III file, being the chat inter se the defendants, to contend that the
same shows a high probability of the defendants having stolen the source
code of the software program of the plaintiff and other confidential data of
the plaintiff.
36. The defendants, in the said chat are found to be indulging in casual
banter about the fact of their leaving the employment of the plaintiff. I have
enquired from the counsel for the plaintiff, whether not such banter is
common also to advocates in large law firms, who often talk about the
impact of their leaving on the firm.
37. The counsel for the plaintiff could not disagree, but contends that the
matter requires further investigation and opportunity of trial needs to be
granted. It is further contended that all objections of the plaintiff are within
the four corners of order of reference; that the experts have not used the
proof of innovation test; the experts have done library-wise instead of
product-wise comparison.
38. I have further enquired from the counsel for the plaintiff, whether
there are any other application / software programs serving the same purpose
as the subject software program of the plaintiff.
39. The counsel for the plaintiff admits that there are others also,
explaining that SSO is an abbreviation for "Single Sign-On" and that Google
also has the same application, but contends that the subject software program
of the plaintiff is standard for universities in United States. On further
enquiry, it is admitted that there are other competitors of the plaintiff in the
United States. The counsel for the plaintiff, in response to the contention of
the counsel for the defendant No.1 has also stated that the plaintiff, in
paragraphs 3 & 4 of the plaint itself has pleaded that the defendants are
authors of the source code of the plaintiff. It is however stated that whatever
was authored by the defendants as employees of the plaintiff, belongs to the
plaintiff.
40. The counsel for the defendants No.2 to 5 has drawn attention to the
replication of the plaintiff to the written statements of the defendants No.2 to
5 to show the plea of the plaintiff that the plaintiff‟s first version of the
software QuickLaunch SSO was launched in the year 2011 and contends that
the defendants No.3&4 joined employment of plaintiff thereafter. It is
further contended that the plaintiff nowhere pleaded that segments of its
source code are from open source software programs and what is being
alleged now is contrary to what is pleaded. It is further argued that the
plaintiff, in the complaint of criminal offence filed against the defendants,
did not say that the defendants are the authors of the plaintiff‟s source code
and it is further informed that the said complaint has been closed.
41. The counsel for the plaintiff has placed reliance on R.G. Anand Vs.
Delux Films (1978) 4 SCC 118, in turn relying on Bobbs-Merrill Company
Vs. Isidor Straus and Nathan Straus 210 U.S. 339, holding "the question is
not whether the alleged infringer could have obtained the same information
by going to the same source used by the plaintiff in his work, but whether he
did in fact go to the same source and do his own independent research. In
other words, the test is whether one charged with the infringement made an
independent production, or made a substantial and unfair use of the
plaintiff‟s work."
42. The counsel for the defendants No.2 to 5 has drawn attention to L.
Ram Narain Vs. Santosh Kumar 1952 SCC Online P&H 64 holding the
reference in that case to be under Section 20 of Evidence Act.
43. I have enquired from the counsel for the plaintiff, whether in the facts
and circumstances aforesaid, the plaintiff is willing to give an undertaking to
pay the actual costs of litigation as disclosed by the defendants to the
plaintiff, in the event of the plaintiff, even after trial sought, failing to make
out a case. The names of the Directors of the plaintiff have also been
enquired, upon being informed that the plaintiff company has no assets of its
own from which the costs, if any decreed against the plaintiff can be
recovered.
44. It is informed that Arun Chopra and Shringi Chopra are the only
Directors of the plaintiff and are of old age. The counsel for the plaintiff
further states that the said Directors are not willing to give an undertaking to
the Court to, in the event of the costs decreed being not recovered from the
plaintiff, being recovered from them personally. It is stated that an
undertaking can be given for maximum costs of Rs.15 lacs.
45. The counsel for the defendants states that the defendants have already
incurred 50% of the costs of over Rs.12.5 lacs paid to IIT, Delhi and have
incurred considerable costs in this litigation for the last over two and a half
years and of which certificate along with proof can be furnished. It is stated
that trial of the suit will entail examination and cross-examination of experts
and all of which will again invite incurring of heavy expenditure, with the
defendants requiring the presence of their expert, even for the cross-
examination of the expert now intended to be examined by the plaintiff. The
counsel for the defendants thus states that the defendants are not willing to
accept the undertaking by the plaintiff and its Directors of maximum costs of
Rs.15 lacs and the plaintiff, if inspite of the report of the IIT, Delhi still
wants to proceed with the litigation, must agree to reimburse the defendants
with full costs thereof, in the event of failing.
46. Having considered the controversy, I am of the opinion that the
defendants are entitled to summary judgment of dismissal of the suit. My
reasons therefor are recorded below:
(A) What is now contended by the counsel for the plaintiff including
in objections is indeed contrary to the stand of the plaintiff taken in
replication filed to the written statement of defendants No.2 to 5 prior
to the report. The plaintiff therein, in response to paragraphs No.28 &
29 of the written statement of the defendants No.2 to 5 as under:
"28. It is further submitted that when the answering
Defendants conducted the comparison between the
source codes of the "QuickLaunch SSO" and
"Loginology", from the very same website that the
Plaintiff had used, i.e. www.diffnow.com, the
answering Defendants found that with respect to
comparisons represented in screenshots II-IV of
the Plaint, the website clearly mentions the name
of the author of the source codes, to be one Mr.
Abdullah A Almsaeed. It is evident that the
Plaintiff, with the intention of misleading and
defrauding the Hon‟ble Court has malafidely
removed the portion of the screenshots, which
mentioned Mr. Almsaeed‟s name as the author.
Thus, despite being aware that Mr. Almsaeed is the
actual author of the source code, who has provided
the open source libraries in public domain, the
Plaintiff has wrongly claimed copyright over such
source codes and filed the instant suit. Further, it
is evident from the printouts of the source codes
that the source code represented in Screenshot I
was published in public domain on 25th May, 2013
and the source code represented in Screenshots II-
IV was published in public domain on 4th January,
2014.
29. It is submitted that such acts of the Plaintiff not
only amount to concealment and suppression of
material fact, but is also contemptuous and
fraudulent deserving to be penalized with
exemplary costs by this Hon‟ble Court. Printouts
of the abovementioned screenshots, the entire
abovementioned source codes from open source
libraries and information about Mr. Almasaeed
have been filed in the present proceeding for the
kind consideration of the Hon‟ble Court. The
answering Defendants reserve its right to initiate
appropriate legal action against the Plaintiff, for
such malicious prosecution and rendering false
evidence."
pleaded as under:
"8. The contents of Paragraphs 28 and 29 are wrong
and denied. It is submitted that as per the
admission of the Defendant‟s screen shot 1 was
first in public domain on May 25, 2013 and a
source code represented in screen shot 2 to 4 was
first published in public domain on January 4,
2014. It is further submitted that the Plaintiffs‟
first version of the software Quicklaunch SSO was
launched in the year 2011 and therefore it cannot
be said that the Plaintiff copied the portions of the
source codes which are available in open source
libraries. It is therefore clear that the Plaintiffs‟
source code is an original work and the
Defendants have copied the work of the Plaintiff to
develop their own software Loginology. Moreover,
it is rather surprising to note that the Plaintiff took
almost 3 years to develop their software and the
Defendants took only 6 months to develop their
software Loginology which is based on same
functioning of the code, same architecture and
same resources. It is the Defendants who have
been suppressing material facts from the Court
and not the Plaintiff. The said fact is apparent
from the fact that the Defendants have claimed that
they have obtained source codes from open source
libraries to develop their software Loginology
whereas when compared with the open source
library, it has been found by the Plaintiff that there
are difference on as many as 249 lines, 4 in-line
differences and 78 lines have been deleted by the
Defendants which proves that Loginology code is
not an open source code. It is therefore
respectfully submitted that the Defendant Nos.2 to
4 should be permanently injuncted from using the
infringing source code and the Defendants deserve
to be penalized with exemplary cost by this
Hon‟ble Court."
(B) Such inconsistencies in a suit of the present nature adjudication
whereof, as aforesaid, is largely dependent on expert opinion and
appreciation thereof, are indeed fatal to the claim of the plaintiff.
(C) The plaintiff, nowhere in its pleadings is found to have pleaded
that though segments of the source code of the plaintiff as well as the
defendants have been sourced from open source code software
programs but the copyright of the plaintiff is in arrangement or
sequencing of the said open source code.
(D) I have in Vifor (International) Ltd. Vs. Suven Life Sciences
Ltd. 2019 SCC OnLine Del 7514, in the context of commercial suits,
held that litigants thereto are required to make sharp to the point
pleadings culling out the disputes for adjudication and cannot be
permitted to take general pleas and cannot understand their own case
during the course of trial. Such pleas make litigation endless, with
applications after applications for amendment of pleadings and for
filing of documents and leading of evidence beyond the permitted
stage being filed and all of which are not envisaged in the timelines for
disposal provided for with respect to the commercial suits in the
Commercial Courts Act, 2015. A litigant to a commercial suit,
particularly a plaintiff, who defaults has to suffer the consequences.
There is a mode to move away from what the Britishers labelled as
„mofussil pleadings‟ at least in relation to commercial suits.
(E) The conduct of the defendants of, on the very first date, even
before filing their written statement, agreeing to suffer a decree for
permanent injunction as sought and also offering to have the software
of both compared by an expert to put the matter at rest at the earliest,
also speaks volumes in favour of the defendants. Not only so, the
defendants also immediately consented to being bound by the report of
the expert meaning that if it were to be against them, the consequences
against the defendants would have followed.
(F) The conduct of the plaintiff, of though not having instructions
on 29th September, 2016 for consent to being bound by the report of
the expert and undertaking to inform the Court of the same, not
informing the Court that the plaintiff was not willing therefor is
indicative of the plaintiff thereby leading the defendants to believe that
the plaintiff was also agreeable thereto and the report of the expert
would indeed be final.
(G) In this context I may mention that since the date of the decree
dated 29th September, 2016, the period of two years for which it was
passed has also expired.
(H) The plaintiff allowed the experts to proceed with the
examination as deemed appropriate by them, by expressly consenting
thereto on 22nd January, 2018. The plaintiff is now estopped from
contending that the examination should have been on different
parameters. Though the plaintiff claims to have filed IA
No.7876/2017 in this respect but did not press the same. The plaintiff
cannot be permitted to blow hot and cold during the course of
proceeding.
(I) No mala fides are attributed to the expert, as indeed cannot be
considering the stature of the institution to which the experts belong.
(J) The expert has given cogent reasons for not finding the
defendants to have plagiarized the software program of the plaintiff
and no material at least for the present suit has been shown to the
contrary.
(K) As far as the reliance by the counsel for the plaintiff on R.G.
Anand supra is concerned, it is the argument of the counsel for the
plaintiff herself, though the plea is to the contrary, that the defendants
are the authors of the source code of the software program of the
plaintiff also. Once the defendants are claimed by the plaintiff to be
the author, in my opinion, in the facts of the present case, the test as
enunciated therein, will not apply.
(L) The reluctance of the plaintiff to even now bear the actual costs
of litigation of the defendants in the event of failing in the suit, is akin
to the fence-sitting indulged in by the plaintiff till now. The plaintiff,
under the Commercial Courts Act itself is liable for actual costs of the
defendants, in the event of failing in the suit. It was only because the
plaintiff, though not entitled in the facts to claim trial, was claiming
trial, then an offer was made to the plaintiff to assure reimbursement
of costs. The defendants cannot be compelled to incur expenditure for
a fishing expedition which the plaintiff appears to be indulging in,
without the plaintiff, if called upon, bearing the expenditure therefor.
The same again shows the roving nature of the enquiry which the
plaintiff desires.
(M) The reference to IIT, Delhi, is found to be within the meaning of
Section 20 of the Evidence Act and the plaintiff, in accordance
therewith is bound by the report and estopped from contending
otherwise.
47. The suit is thus dismissed. I am for the time being confining costs
incurred by the defendants in the litigation to the amount paid by defendants
No.2 to 5 to IIT, Delhi, being 50% of about Rs.12 lacs i.e. Rs.6 lacs only but
with the clarification that in the event of the plaintiff preferring an appeal,
the defendants shall be entitled to press for costs of the suit till now also, if
the occasion so arises before the Appellate Court. The plaintiff to pay costs
of Rs.6 lacs to defendants No.2 to 5 within four weeks.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
MARCH 29, 2019
„bs‟
(corrected and released on 19th April, 2019)
