[Cites 3, Cited by 0]
Gujarat High Court
Cryogas Equipment Private Limited vs Inox India Private Limited on 9 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
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Reserved On : 01/04/2026
Pronounced On : 09/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4648 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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CRYOGAS EQUIPMENT PRIVATE LIMITED & ANR.
Versus
INOX INDIA PRIVATE LIMITED & ORS.
=============================================
Appearance:
MR KAMAL TRIVEDI, SR. ADVOCATE with MR SHALIN MEHTA,
SR. ADVOCATE with MR C B UPADHYAYA with MR VINAY
BAIRAGARA for the Petitioner(s) No. 1,2
MR MIHIR JOSHI, SR. ADVOCATE with MR RASHMIN
KHANDEKAR with MR DHIREN KARANIA WITH MR RUDRAM
TRIVEDI for the Respondent(s)
MR. AADIT R SANJANWALA(9918) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
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1. The short controversy in the present petition invoking
extraordinary jurisdiction of the High Court under
Article 227 of the Constitution of India is pertaining to
the validity of the order dated 17.03.2026 whereby the
application of the respondent no.1 herein, namely the
plaintiff seeking copies/prints of the contents of the pen
drive submitted by the Court Commissioner, has been
partly allowed. The operative portion of the order
impugned reads as under :-
"1. Present application seeking copies / prints of
the contents of Pendrive submitted by Court
Commissioner is partly allowed.
2. Mr. S.K.Gohil, System Officer, District Court
Vadodara is hereby appointed as Court
Commissioner to only take print outs of the data of
plaintiff stored in pendrive (Mark-18/16) in
presence of both the parties and hand over to
plaintiff.
3. Plaintiff is directed to deposit a total sum of
Rs.10,000/- (Rupees Ten Thousand Only) as
remuneration towards Court Commissioner before
the Nazir, District Court Vadodara which will be
released in favour of Court Commissioner after
submission of report.
2. Amongst various submissions made by the learned
Senior counsels for the petitioners to assail the order
impugned, the primary grounds of challenge are that the
Commercial Court has erred in providing the printouts of
the data, allegedly that of the plaintiff stored in the pen
drive, inasmuch as, the data contains confidential
information re: trade practices of the plaintiff and that
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the suit is at the primary stage of framing of issues. At
this stage, providing material collected by the Court
Commissioner from the computer of the defendants
would amount to assisting plaintiff to build its evidence,
by the Court.
3. The Court Commissioner was appointed vide order dated
25.09.2018 passed by the Commercial Court and the
report was submitted at Exhibits '52' and '61' along
with the pen drive at Mark 18/16, containing the data
stored in the computer of defendants no. 1 and 2, the
petitioners herein. Even vide order dated 24.09.2019,
the parties were permitted to view the contents of the
pen drive on the court's computer.
4. The stage at which the Court Commissioner was
appointed was the stage of consideration of the interim
injunction application, which has later been decided by
the trial court. The challenge to the order of grant of
interim injunction restraining the petitioners from using
the respondent's drawing and confidential information,
is pending adjudication in F/Appeal from Order No. 6098
of 2026.
5. It is contended by the petitioners herein that the order
of interim injunction does not even refer to the
inspection report of the Court Commissioner in its
analysis, which fact itself indicates that the alleged
contents of the pen drive have no bearing on the merits
of the case, at this stage.
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6. It is submitted by the learned Senior counsel for the
petitioners herein that the pen drive is part of the Court
record and hence, possibility of tampering or loss of the
data is purely speculative.
7. The plaintiff/respondent no.1 herein, however, moved an
application at Exhibit '98' seeking copies/print outs of
the contents of the pen drive submitted by the Court
Commissioner pursuant to the commission ordered
below Exhibit '7'. The petitioners/defendants, in
rebuttal, filed their reply at Exhibit '231' contending that
the purported local inspection amounted to an unlawful
and unauthorised invasion of the defendants' premises
and rights. Consequently, any data allegedly obtained
pursuant thereto is inadmissible and cannot be relied
upon by the Commercial Court.
8. The petitioners/defendants no.1 and 2 denied that the
pen drive contains any proprietary documents or
intellectual property belonging to the
plaintiff/respondent no.1 herein and the mere presence
of the plaintiff's name or address on certain documents
collected in the pen drive does not establish ownership
or any infringement on the part of the defendants.
9. It was vehemently argued by the learned Senior counsels
for the petitioners that the pen drive contains
confidential and sensitive data of the
petitioners/defendants Company and permitting the
original plaintiff to access or obtain copies of such data
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without proper judicial scrutiny would cause serious
prejudice to the petitioners herein/defendants no.1 and
2. The submission is that the framing of issues is a
crucial stage of the trial as it identifies the real questions
in dispute between the parties and provides direction to
the proceedings. In absence of framed issues, the
parties are not clearly aware of what is required to be
proved. Permitting sharing of data collected by the Court
Commissioner to the plaintiff prior to the framing of
issues amounts to collection of evidence without a
defined dispute, which is procedurally improper and
prejudicial to the defendants.
10.It is submitted that allowing access to or inspection of
the contents of the pen drive at this stage is contrary to
the very object and scheme of Order XIV CPC and
disrupts the order and process of trial. Such an
approach confers an unfair advantage upon the plaintiff
by enabling them to search for and build evidence
without first establishing the precise nature of the
dispute and thereby causing serious prejudice to the
defendants.
11. Mr. Mihir Joshi, learned Senior counsel for the
respondent no.1/plaintiff, however, would argue that the
Court has allowed application Exhibit '98' of the
plaintiff in part and the printouts of only some data
collected by the Court Commissioner stored in the pen
drive (Mark 18/16), which is the data of the plaintiff, is
directed to be provided in presence of both the parties.
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The submission is that the Commercial Court has taken
due care that no confidential data belonging to the
defendants be provided to the plaintiff.
12. Further, the pen drive forms part of the record and as
per Order XXVI Rule 10 CPC, the evidence taken by the
Court Commissioner along with the report shall form
part of record of the proceedings. The defendants
cannot be permitted to argue that material in the pen
drive collected during the Court commission work does
not form part of the court record. The submission is
that once the copy of the data in the pen drive
containing the material collected from the computer of
the defendants has already given to them, the plaintiff
who has filed the present suit for infringement of its
copyright in proprietary engineering drawings, IPs and
literary work against the defendants is also entitled to
get a copy of its data (data of plaintiff) stored in the pen
drive.
13. The contention is that the only caveat put forth by the
defendants against the order impugned is that the
Commercial Court has provided confidential data of the
defendants to the plaintiff collected by the Court
Commissioner, which is incorrect. The Commercial
Court has carefully segregated the data of the plaintiff,
printouts of which are to be provided under the order
impugned. It is vehemently argued that once the data
collected in the pen drive itself records the name and
address of the plaintiff, it is clear that such data belongs
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to the plaintiff and no exception can be taken to
providing of the printouts thereof.
14. Reliance is placed on the decisions of the High Court of
Delhi in Autodesk Inc v. A.V.T. Shankardass, [2008
SCC OnLine Del 775] to submit that in the case of
infringement of copyright, the collected data of the
defendants by the Court Commissioner is a crucial
evidence, which is required to be evaluated by the
Court. The object of appointment of the Court
Commissioner is not to collect evidence, but to preserve
and protect the infringing evidence. The appointment of
Court Commissioner in such matters is usual and in fact
is intended to sub serve the ends of justice and it is
imperative to ensure that the actual position is not
altered. The submission is that the Commercial Court
has duly recognised the concern of the plaintiff while
appointing the Court Commissioner at the initial stage
that there may be a possibility of incriminating software
being removed and the requirement was to preserve the
data.
15. Referring to Order XXXIX Rule 7 CPC, the learned
Senior counsel for the plaintiff/respondent no.1 would
submit that the detention and preservation of property,
subject matter of suit, at interim stage, is permissible.
Order XXVI Rule 9 clearly provides that for the purpose
of elucidating any matter in dispute, the Court if deems
fit, may require a local inspection or direct to make such
inspection and to report thereon to the Court. The
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appointment of Court Commissioner with a view to
detain/preserve the incriminating data has not been
challenged by the petitioners/defendants no.1 and 2.
16. As per Order XXVI Rule 10(2), the report of the Court
Commissioner and the evidence taken by him shall be
evidence in the suit and shall form part of the record.
It is open for any of the parties to the suit, with the
permission of the Court, to examine the Commissioner
personally in open court to confront him on the report or
as to the manner in which he has made the investigation.
As per Order XXVI Rule 10(3), the Court if dissatisfied
with the proceedings of the Court Commissioner, it may
reject the same or may direct for further inquiry, if it
thinks fit.
17. The submission is that the Commercial Court cannot be
said to have erred in referring to Order XXVI Rule 10
read with Rule 10A CPC to hold that the evidence taken
by the Court along with its report shall form part of the
record and the defendants cannot be permitted to
contend to the contrary or to challenge the entire Court
commission work by stating that the Court
Commissioner has gone beyond the duties conferred on
them. The submission is that the order of the
Commercial Court is a calibrated order and only the
plaintiff's documents are directed to be copied and given
while accepting the defendants claim of confidentiality
and no document of the defendants has been directed to
be given.
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18. The submission is that except in a case where the
objection of confidentiality is taken, the evidence
collected by the Court Commissioner submitted along
with its report has to be provided. However, where non-
confidential documents belonging to the plaintiff are
directed to be supplied to the plaintiff by taking
printouts of the contents from the pen drive, no infirmity
can be attached to the order of the Commercial Court.
Nothing wrong in principles applied by the Commercial
Court based on any legal principles could be pointed out
by the defendants as noted in the order impugned. This
court, therefore, may not entertain the present petition.
19. In response to the submission of the learned Senior
counsel for the petitioners/defendants no.1 and 2 that
providing contents of the pen drive at this stage when
even issues are not framed, would not amount to
collecting evidence for the plaintiff/respondent no.1
herein facilitating it to build its case based on the
contents of the pen drive, it was submitted that in
principle, the Court Commissioner cannot collect
evidence which the party would have collected.
However, in the present case, where evidence is
collected by the Court Commissioner, the direction to
provide copies of the data of the plaintiff to it cannot be
assailed without any disclosure of such documents being
confidential. The submission is that in the instant case,
in absence of any objection to the confidentiality,
inasmuch as, the documents, copies whereof are to be
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provided under the order impugned, are referred to as
the documents of the plaintiff in the Court
Commissioner's report itself, no infirmity can be
attached to the order impugned.
20. Referring to the judgment and order dated 07.07.2025
passed by this Court in the case of Prime Diamond
Tech & Ors. vs. Sonani Jewels Pvt. Ltd. In Special
Civil Application No.9066 of 2025 & Anr., it was
submitted that in the said case, this Court has directed
not to provide access to the confidential
information/trade secret of the rival parties at the
interim stage while leaving it open for the Commercial
Court to form its independent opinion at an appropriate
stage to do the needful. In any case, no confidential
information of the defendants is being provided to the
plaintiff under the order impugned and no infirmity, as
such, can be attached thereto.
21. Further, referring to the Division Bench judgment of the
Bombay High Court in Sonali Ashok Tandle v. Ranka
Lifestyle Ventures [2023 SCC OnLine Bom 1918], it
was submitted that the sealed cover material submitted
in evidence has been deprecated by the said Court. It
was clearly held therein that no party is entitled to rely
on "sealed cover material" to the prejudice of the other
side and no Court should permit it. To do so flies in the
face of very concept of fair justice and openness and
transparency in the decision making process.
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22. Having heard the learned Senior counsels for the parties
and perused the record, relevant is to note that the suit
seeking injunction on infringement of the copyright filed
against the defendants no.1 and 2/petitioners herein, is
at the stage of framing of issues as stated in the present
petition.
23. There is no dispute to the principle that the Court
Commissioner's report once submitted in the Court
becomes part of the record and shall be evidence in the
suit. There cannot be a dispute that the parties are
entitled to confront the Court Commissioner on its
report and that the evidence collected by the Court
Commissioner being part of the record of the Court
proceedings, can be supplied to the parties, if applied
for, in a case where there is no issue of confidentiality.
24. None of the parties can claim that the evidence collected
by the Court Commissioner, which are not confidential
information of one of the parties pertaining to trade
secret, etc. cannot be supplied to the other party.
25. The suit, out of which the present petition has arisen, is
a suit for injunction for infringement of the copyright.
The material collected by the Court in the Court
Commissioner report are crucial piece of evidence to
decide on the main question of injunction. The Court
has been careful in preserving the material at the
interim stage keeping in the spirit of Order XXXIX Rule 7
of the Code of Civil Procedure, 1908, on the concern
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shown by the plaintiff and to avoid any possibility of
incriminating software being removed or tampered with.
The order of appointment of the Court Commissioner in
the present matter cannot be said to be an order to
collect evidence, but it is to preserve and protect the
infringing evidence. The order of appointment of Court
Commissioner is intended to sub serve the ends of
justice.
26. However, the test of reasonable and credible information
regarding existence of copied design or incriminating
evidence has to be subjected to strict proof during the
course of evidence. It is to be tested on the principles
formulated in Order XXVI Rule 10(2) CPC itself where
any of the parties with the permission of the Court may
confront the Court Commissioner personally in open
Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation. The first
principle is that the Court Commissioner's report is also
a rebuttable piece of evidence, though collected by the
Court in its wisdom for the purpose of elucidating any
matter in dispute.
27. The question, therefore, would be as to whether the
current stage of the suit proceedings where barely
issues have been framed and even the plaintiff has not
led his evidence, the copies of the documents submitted
in the Court Commissioner's report by taking printouts
of the data stored in the pen drive, shall be provided to
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the plaintiff for the mere fact that the Court
Commissioner in his report has mentioned that the said
documents belong to the plaintiff.
28. From a reading of the order dated 17.03.2026, it is
evident that the Court has recorded of the pending
application at Exhibit '213' for amendment of plaint and
application at Exhibit '214' for production of documents.
It has also noted that on the next date fixed therein was
for hearing of all pending applications so that the issues
could be framed expeditiously. There is a direction for
time bound trial of the proceedings of the present suit
by the Apex Court.
29. In our considered opinion, providing of the contents of
the pen drive to the plaintiff on the premises that the
data, copies whereof is to be provided under the order
impugned, belong to the plaintiff, at this stage, is an
error committed by the Commercial Court in the order
impugned. The first reason for holding so is that the
Commercial Court has not even deliberated on the
contention of the defendants that the data collected in
the pen drive is a confidential information of the
defendants and the Court Commissioner has not adopted
correct means to investigate, in the order impugned.
30. However, what bothers us most is the stage at which the
part of the evidence collected by the Court
Commissioner is being provided to the plaintiff, on the
mere premise that the copies of the pen drive containing
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the material collected from the computer of the
defendants has already being given to the defendants.
The question is as to whether it would be prudent for the
Court to provide the data collected from the computer of
the defendants to the plaintiff when the plaintiff has not
even led its evidence. In our considered opinion, if this
is permitted, it would amount to providing assistance by
the Court to the plaintiff to build its evidence, without
first establishing the precise nature of the dispute by
framing issues after dealing with the applications of the
plaintiff for amendment of the plaint and production of
the documents.
31. We are of the considered view that the stage at which
the order impugned has been passed is not a proper
stage of providing copies of the evidence collected by
the Court Commissioner to the plaintiff. The proper
stage could be when the issues are framed after the
plaintiff leads evidence. At that stage, after due
consideration of the rival contentions of both the sides, it
would be open for the Commercial Court to provide
printouts of the data stored in pen drive, which is stated
to be that of the plaintiff and does not contain any
confidential information of the defendants, which may be
a trade secret information of the said party.
32. Even otherwise, from the order impugned itself, it is
evident that both the parties, i.e. the plaintiff as well as
defendants have been permitted to view the contents of
the pen drive on the court's computer under the order
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dated 24.09.2018. The application Exhibit '98' in the
Trade Mark Suit No. 3 of 2019 is pending since 2019.
There was no occasion for the Commercial Court to
provide printouts of the data of the pen drive allegedly
belonging to the plaintiff at this stage.
33. A perusal of the application dated 26.09.2019 at Exhibit
'98' (page 253 of the paper book) of the plaintiff further
indicates that the issues raised therein are that several
files contained in the pen drive could not be opened on
the Court's computer, as the same did not have the
necessary software to support such programmes and
files, which can be viewed only by expert having
supporting software. Many documents reflect the name
and address of the plaintiff and are plaintiff's
documents, which establish that the documents obtained
from the defendants' computer are the plaintiff's
documents in breach of intellectual property of the
plaintiff. It is, therefore, contended that it is just and
necessary for the plaintiff to obtain the copies of
contents of the pen drive as the same touches the merits
of the matter and the plaintiff is seeking injunction
against the defendants and hence, the contents of the
pen drive are relevant for adjudication of the dispute.
34. Another concern shown by the plaintiff therein is that
the pen drive may get corrupted or otherwise get
damaged and the data found in the pen drive or the pen
drive itself may get otherwise damaged. It is, therefore,
imperative in the larger interest of justice and is of
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utmost importance to provide the copies of the contents
of the documents to the plaintiff and the set of
documents be made available for the perusal of the
Court so that the dispute can be adjudicated on merits.
The prayer made therein is that the Court may direct the
officer of the Court to carry out the function of taking
prints of the electronic records and the pen drive, which
is also part of the suit record and the data stored in
electronic form shall also be preserved as part of the suit
record. The prayers in the said application read as
under :-
"8. In view of the aforesaid, it is prayed that :
a. The contents of the pen drive, at Mark
18/16 available in the record may please be
ordered to be copied in the form of hard
copies and such copies be ordered to be given
to the Plaintiff at Plaintiff's cost.
b. A Court Commissioner/Technical Person
who is part of/employee of the Court's
administration/ IT Department may be
appointed for carrying out such copies at the
cost of the Plaintiff and such copies may
please be ordered to be given to the Plaintiff.
c. Any other relief in the interest of
justice."
35. Taking note of the above, we may simply observe that in
a copyright suit, divulging of trade secret of each other
to the rival parties would be antithesis to the whole
concept. Further, providing of data collected by the
Court Commissioner to the plaintiff at the preliminary
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stage of framing of issues would amount to providing
undue assistance by the Court to the plaintiff to
establish its case by leading evidence. It is settled
principle of law that the plaintiff has to stand on its own
legs and the collection of data in the form of Court
Commission is for the assistance of the Court, in order to
cull out the truth of the case of the parties. The Court
Commissioner report is itself an evidence collected by
the Court, copies whereof may be provided to the
plaintiff at the appropriate stage of the suit by excluding
the confidential informations of the defendants.
36. For the reasoning given above, we hold that the order
dated 17.03.2026 passed by the Commercial Court,
Vadodara below Application Exhibit '98' in Trademark
Suit No. 03 of 2019, cannot be sustained at this stage.
While setting aside the same, the application Exhibit '98'
filed by the plaintiff on 26.09.2019 stands revived. The
Commercial Court is directed to proceed with the suit in
an expeditious manner by disposing of the pending
applications and framing of issues by adopting due
process. The application Exhibit '98' of the plaintiff
shall be considered by the Commercial Court at an
appropriate stage, after the evidence are led by the
plaintiff before forming any opinion on the Court
Commissioner report by giving due opportunity to the
parties to confront the Court Commissioner's report.
37. It is further clarified that at this stage we do not find any
reason to give access to the plaintiff to the information
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collected by the Court Commissioner from the
computers of the rival parties, namely the defendants. It
would, however, be open for the Commercial Court to
form its independent opinion at an appropriate stage, on
appreciation of material before it, to do the needful by
taking just decision in accordance with law, without
being influenced by any of the observations made
hereinabove.
38. The present order will have no bearing on the merits of
the case of the parties, inasmuch as, all necessary steps
to bring the dispute to its logical end by adopting due
process of law can very well be taken by the Commercial
Court in its own wisdom. We trust that the Commercial
Court has already taken necessary steps to ensure
preservation of the data of the pen drive collected by the
Court Commissioner so as to address the concern of the
plaintiff about the pen drive being corrupted or the data
becoming inaccessible.
39. With the above, the present petition stands disposed of.
No order as to costs.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
