Karnataka High Court
Newspace Research And Technologies ... vs Mr Anirudh Putsala on 29 January, 2025
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY 2025
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WP No.32999 OF 2024 (GM -CPC)
BETWEEN
NEWSPACE RESEARCH AND
TECHNOLOGIES PRIVATE LIMITED
A COMPANY REGISTERED UNDER
COMPANIES ACT 2013
HAVING ITS OFFICE AT NO. 2385
1ST FLOOR 60 FEET ROAD
SAHAKARNAGAR, BENGALURU
KARNATAKA 560 092
REP BY ITS DIRECTOR
MR SAMEER JOSHI.
...PETITIONER
(BY SRI. ANGAD KAMATH, ADVOCATE FOR
SMT. RAMYA S., ADVOCATE)
AND
1. MR ANIRUDH PUTSALA
AGED MAJOR
S/O PRASADA RAO PUTSALA
R/AT 303, SRI LAKSHMI VEKATESHWARA PG
NO. 1723, 1ST MAIN 6TH CROSS
SANJEEVINI NAGAR
KODIGEHALLI MAIN ROAD
BANGALORE 560092.
2
2. LENVIZ TECHNOLOGIES PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT L-58
SECTOR 11 NOIDA, GAUTAM BUDDHA NAGAR
UTTAR PRADESH 201 301.
ALSO AT.
GNEC-IIT ROORKEE PLOT NO. 20
KNOWLEDGE PARK II, GREATER NOIDA
UTTAR PRADESH 201 310
REP BY ITS DIRECTOR
MR PRABHAT SHARMA.
3. MR PRABHAT SHARMA
AGED MAJOR
S/O MR SHISHU PAL SHARMA
DIRECTOR
LENVIZ TECHNOLOGIES PRIVATE LIMITED
L-58 SECTOR 11 NOIDA
GAUTAM BUDDHA NAGAR
UTTAR PRADESH 201 301
ALSO AT GNEC IIT ROORKEE
PLOT NO. 20, KNOWLEDGE PARK II
GREATER NOIDA, UTTAR PRADESH 201 310
ALSO AT B2/510 TOWER II SILVER CITY
SECTOR 93, NOIDA
UTTAR PRADESH 210 304.
4. MR AKASH PATIL
AGED MAJOR
S/O MADHUKAR PATIL
FLAT NO. A031 VAJRAM ELINA
R K HEGDE NAGAR, THANISANDRA MAIN ROAD
BANGALORE, KARNATAKA-560 064
ALSO AT FLAT NO. 1 ANUJ HEIGHTS
PURNANAGAR, CHINCHWAD, PUNE 411 019
...RESPONDENTS
(BY SRI. ARUN KUMAR K, SENIOR COUNSEL FOR
SRI RAKSHITH PAI & VYBHAVASHREE S., ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER OF THE XIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-18) AT BENGALURU DATED:
29.11.2024 ANNEXURE-A TO THE EXTENT THAT AD INTERIM
EX PARTE RELIEF ON I.A.NOS. 3 OF 2024 WAS REFUSED
AND EMERGENT NOTICE WAS ISSUED ETC.
THIS WP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 21.01.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT, MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
CAV ORDER
This writ petition is filed by the plaintiff under
Article 227 of the Constitution of India, challenging
the order dated 29.11.2024 passed by the XIX
Additional City Civil and Sessions Judge, Bengaluru on
IA No.3 in O.S.No.8367/2024, refusing to grant ex-
parte order for appointment of Commissioner.
2. The petitioner/plaintiff filed a suit for perpetual
injunction, restraining the defendants, their agents,
contractors, his employers, partners or any other
person/entity claiming through or under the
defendants from directly or indirectly copying, sharing
or using in any manner the confidential/proprietary
information/material belonging to the plaintiff, inter
alia, as referred in the forensic investigation report
produced as document 20 and a decree of mandatory
injunction directing the defendants, their agents,
contractors, his employers, partners or any other
person/entity claiming through or under the
defendants to deliver up to the plaintiff all copies of,
and destroy any remaining physical and digital copies
of the confidential/proprietary information/material
belonging to the plaintiff.
3. Along with the plaint, plaintiff has filed IA No.2
under Order XXXIX Rules 1 and 2 r/w. Section 151 of
CPC with a prayer to grant an ad-interim order of ex-
parte temporary injunction. IA No.3 is filed under
Order XXVI Rules 1 and 9 r/w. Section 151 of CPC
with a prayer to grant an ex-parte interim order to
appoint a Commissioner. On consideration of IA Nos.2
and 3, the trial court issued an ad-interim ex-parte
temporary injunction order against the defendants,
restraining them, their agents, contractors,
employers, partners or any other person/entity
claiming through or under the defendants from
directly or indirectly copying, sharing or using in any
manner the confidential/proprietary information/
material belonging to the plaintiff, in the interest of
justice and equity, till the next date of hearing.
Regarding IA No.3, for appointment of Commissioner
is concerned, refused to pass an ex-parte order, but
only issued an emergent notice. Being aggrieved by
the order dated 29.11.2024, the plaintiff is before this
Court.
4. This Court, on 06.12.2024, passed an ex-parte
order appointing the Court Commissioner to carry out
search and seizure of the operation of the data
storage media, files, folders, documents etc. in the
premises of the respondents/defendants and directed
the Commissioner to execute the warrant for seven
days from 20.12.2024 to 28.12.2024 and report the
same to this Court on 06.01.2025. On 06.01.2025,
the Court Commissioner has submitted a report in a
sealed cover and the same is taken on record.
5. The learned counsel for the respondents/
defendants has appeared on 06.01.2025 and raised a
preliminary objection regarding the maintainability of
the writ petition and ex-parte interim order granted by
this Court. On that issue, the matter was heard on
15.01.2025.
6. The learned Senior Counsel appearing for the
respondents/defendants raised the following
contentions:
(i) Firstly, the petitioner/plaintiff has sought to
invoke the extraordinary jurisdiction of this Court
under Article 227 of the Constitution of India.
However, the petitioner has failed to make out any
case for availing and invoking the extraordinary
jurisdiction of this Court.
(ii) Secondly, the petitioner/plaintiff has filed an
application for appointment of a Commissioner under
Order XXVI Rule 9 of CPC. Since the trial court has no
power to order the appointment of ex-parte Court
Commissioner under Order XXVI Rule 9 of CPC, the
trial court has rightly issued summons to the
defendants. There is no error or illegality in the order
passed by the trial court.
(iii) Thirdly, the ex-parte interim order passed by
this Court, appointing the Court Commissioner under
Order XXVI Rule 9 of CPC is without jurisdiction. The
Court Commissioner can be appointed only after the
service of notice to the respondents/defendants.
Therefore, the report submitted by the Court
Commissioner pursuant to the order passed by this
Court on 06.12.2024, cannot be accepted.
(iv) Fourthly, the Court Commissioner can be
appointed under Order XXVI Rule 9 of CPC to make a
local investigation for the purpose of elucidating any
matter in dispute, or of ascertaining the market value
of the property, or the amount of any mesne profits or
damages or annual net profits. The Court
Commissioner cannot be appointed for search and
seizure of the software, computer and laptops from
the premises of the parties, that too, without giving
any notice and therefore, the writ petition filed by the
petitioner/plaintiff itself is not maintainable. The ex-
parte order passed by this Court appointing the Court
Commissioner on 06.12.2024 is without jurisdiction.
In support of his contentions, he relied on the
judgment of the Apex Court in the case of PADAM
SEN AND ANOTHER vs. STATE OF UTTAR
PRADESH reported in AIR 1961 SC 218 and
contended that before appointing a Commissioner the
Court has to call upon the parties to produce
documents, when the parties fail to produce the
relevant documents which is in their possession,
especially after it has been summoned from it, then
only appoint a Court Commissioner. The court has no
power to get hold of the documents forcibly from the
possession of the parties.
(v) Fifthly, the ex-parte interim order passed by
this Court is contrary to the judgment of the Apex
Court in the cases of PADAM SEN (supra) and
MANOHAR LAL CHOPRA vs. RAI BAHADUR RAO
RAJA SETH HIRELAL reported in AIR 1962 SC 527.
Hence, he sought to dismiss the writ petition.
7. On the other hand, the learned counsel
appearing for the petitioner/plaintiff raised the
following contentions:
(i) Firstly, this Court, by order dated 06.12.2024
passed an ex-parte order, appointing the local
Commissioner to search and seize the documents and
some materials and a warrant has been issued to
execute the same from 20.12.2024 to 28.12.2024.
Pursuant to that, the warrant is executed and report
has been submitted. If the respondents/defendants
are aggrieved by that order, they have to challenge
the same before the Apex Court. Since that order has
attained finality, now the report has to be transferred
to the trial court. The trial court may be directed to
decide the legality and validity of the Court
Commissioner's report, after giving opportunity to
both the parties. In support of his contentions, he
relied on the judgment of the Apex Court in Special
Leave to Appeal (Civil) Nos. 12950-12951/2022
disposed of on 17.11.2022.
(ii) Secondly, in the suit for infringement of copy
right, the court has the power to pass an ex-parte
order appointing the Commissioner under Order XXVI
Rule 9 of CPC for seizing and collecting all the
materials. The appointment of a court commissioner
in the intellectual property rights cases ex-parte is
desirable to ensure that the surprise elements remain
intact. In the absence whereof the respondents would
easily be in a position to remove the infringing
products when the Court Commissioner visits the
premises of the respondents.
(iii) Thirdly, the Delhi High Court in the case of
AUTODESK INC. AND ANOTHER vs.
A.V.T.SHANKARDASS AND ANOTHER reported in
AIR 2008 Delhi 167 has issued a guideline for
appointment of the local commissioner in software
infringement and piracy matter. The trial court,
without appreciating the guidelines issued by the Delhi
High Court, has erred in refusing to grant ex-parte
order. In support of his contention, he has relied on
the judgment of the Bombay High Court in the case
of FOUNDRY VISIONMONGERS LTD. Vs. ANKUR
SUDHIR SACHDEV AND OTHERS reported in AIR
2016 SCC online Bombay 932.
(iv) Fourthly, this Court has rightly exercised the
power under Order XXVI Rule 9 of CPC and passed an
order on 06.12.2024.
(v) Fifthly, in the judgment relied upon by the
learned Senior Counsel for the respondents/
defendants in the case of PADAM SEN (supra), the
question for determination is with respect to whether
the court has right in exercising its inherent power
under Section 151 of CPC. The Apex Court has not
decided the power of the Court under Order XXVI Rule
9 of CPC. In that view of the matter, the judgment
relied upon by the learned Senior Counsel for the
respondents/defendants is not applicable to the facts
of this case. Hence, he sought to allow the writ
petition.
8. Heard the learned counsel for the parties and
perused the writ papers.
9. The point for consideration in this petition is,
"Whether the court can pass an ex-
parte order appointing a Court
Commissioner in an intellectual property
rights case?
10. The intellectual property, though intangible,
is probably the most important form of property
today. The definition of intellectual property has
widened with growth of international trade and
globalization of economy, giving the whole business a
paradigm. Intellectual property having developed into
a powerful commercial asset with the ever-evolving
digital technology. Intellectual property rights are
basically negative right, which allow the right-holder
to (i) utilize, (ii) dispose of his rights and (iii) initiate
legal action against those who infringe them. Anybody
who misappropriates the property is faced with civil
and/or criminal consequences. While the traditional
remedies include injunction, cost, damages, etc. what
has assumed more popularity in these days is the non
traditional forms of remedies like, Anton Piller order,
interlocutory injunction, etc.
11. Anton Piller orders are legal mechanisms
that allows an applicant to search a defendant's
premises and seize evidence without prior notice or
warning. They are often referred to as search orders
or civil search warrants. The main purpose of Anton
Piller order is to stop the defendant tampering with
any evidence that may be relevant to a court case in
intellectual property rights matters. Anton Piller order
originated in United Kingdom from the case ANTON
PILLER K.G. vs. MANUFACTURING PROCESS &
OTHERS reported in (1976) 1 All ER 779. However,
this did not address the issue of unknown infringers.
This led to adoption of John Doe Orders (whose origin
can be traced in United States of America). When such
orders were used to refer to unidentifiable defendants,
UNITED STATES OF AMERICA vs. JOHN DOE (18
U.S.C. 1956 (b)(4)). This order was granted in U.S.,
Canadian and Australian Courts. Now the Indian
Courts are using this concept of issuing ex-parte order
in intellectual property rights cases to punish class of
unknown infringers. The Delhi High Court passed John
Doe order in the year 2002 in TAJ TELEVISION LTD.
& OTHERS vs. RAJAN MANDAL AND OTHERS,
ESPN SOFTWARE INDIA PRIVATE LIMITED vs.
TUDO ENTERPRISE. The Delhi High Court also
issued Anton Pillar order (ex-parte order for
appointment of Court Commissioner) and also issued
guidelines in the case of AUTODESK INC (supra).
The relevant portion is extracted below:
"14. Coming now to the question of guidelines
to be set, we have heard both the counsel for
the parties. We are conscious of the fact that it
is neither feasible nor practical to lay down
guidelines, which would cater to numerous and
all the situations that may arise. However,
some of the following relevant factors and
guidelines are being enumerated which the
Court may take into consideration on the
question of appointment of a Local
Commissioner in software infringement and
piracy matters:-
(i) The object of appointment of a Local
Commissioner in software piracy matters is
not, as much to collect evidence but to
preserve and protect the infringing evidence.
The pirated software or. incriminating evidence
can only be obtained from the premises of the
opposite party alone and in the absence of an
ex parte appointment of a Local Commissioner
there is likelihood that such evidence may be
lost, removed or destroyed;
(ii) Request for ex parte appointment of a
Local Commissioner in such matters is usual
and in fact is intended to sub serve the ends of
justice as it is imperative to have an element
of surprise so that the actual position is not
altered;
(iii) The test of reasonable and credible
information regarding the existence of pirated
software or incriminating evidence should not
be subjected to strict proof or the requirement
to demonstrate or produce part of the pirated
software/incriminating evidence at the initial
stage itself. It has to be tested on the
touchstone of pragmatism and the natural and
normal course of conduct and practice in trade.
(iv) It may not always be possible for a plaintiff
to obtain any admission by employing decoy
customers and gaining access to the
defendant's premises. Any such attempt also
inheres in it the possibility of dis-appearance of
the pirated software/incriminating evidence in
case the decoy customers is exposed.
Accordingly, visit by decoy customer or
investigator is not to be insisted upon as pre
condition. A report of private Investigator need
not be dis-regarded or rejected simply because
of his engagement by the plaintiff. The
information provided by the private
Investigator should receive objective
evaluation.
(v) In cases where certain and definite
information with regard to the existence of
pirated software or incriminating evidence is
not available or where the Court may nurture
some element of doubt, it may consider asking
the plaintiff to deposit cost in Court so that in
case pirated software or incriminating evidence
is not found then the defendant can be suitably
compensated for the obtrusion in his work or
privacy".
12. In view of the above, it is very clear that in
the intellectual property rights cases, the ex-parte
order of appointment of the Court Commissioner is to
ensure that a surprise element remains intact, in the
absence whereof the respondents would easily be in a
position to remove the infringing products when the
court commissioner visits the premises of the
respondent. If the ex-parte order is not passed, the
respondents/defendants may likely to uninstall or
remove the infringed version of the software from
their machines, thereby the person tampering with the
evidence of the actual usage of the software. It is not
as much collecting the evidence but to preserve and
protect the infringing evidence. Therefore, an ex-
parte order appointing the Court Commisisoner for
search and seizure of the business premises of the
respondents/defendants is necessary. The Court can
pass the ex-parte order only in following situations:
(a) Where the plaintiff has an extremely
strong prima facie case,
(b) Where the actual or potential damage
to the plaintiff is very serious,
(c) Where it was clear that the defendant
possessed vital evidence, and
(d) There was a real possibility that the
defendant might destroy or dispose of such
material so as to defeat the ends of justice,
(e) The purpose of Anton Piller order is the
preservation of evidences.
(f) The Court also has to pass an order
safeguarding the interest of the defendant
while granting ex-parte order, like undertaking
by the plaintiff to compensate the defendant
for the losses he wrongly suffered have to be
provided while granting Anton Piller order.
13. In the judgment relied upon by the learned
Senior Counsel for the respondents/defendants in the
case of PADAM SEN (supra), the issue for
determination in that case is that whether the court,
in exercise of its inherent power under Section 151 of
CPC can appoint a commissioner for seizing of the
books of accounts of the parties. In the said case, the
Apex Court has not decided the power of the court to
issue an ex-parte order under Order XXVI Rule 9 of
CPC. The judgment relied upon by the learned Senior
Counsel for the respondents/defendants is not
applicable to the facts of this case.
14. Pursuant to the order passed by this Court
on 06.12.2024, the Commissioner has submitted a
report on 06.01.2025. In similar circumstances, the
Gujarat High Court in Special Civil Application No.
2588/2020 and connected matters, disposed of on
29.04.2022, wherein the trial court has refused to
grant an ex-parte order for appointment of the
Commissioner, the plaintiff has approached the High
Court under Article 227 of the Constitution of India.
The High Court has passed an ex-parte order
appointing a local commissioner in a software
infringement and piracy matter. The Court
Commissioner has submitted a report. The High Court
set aside the Court Commissioner's report on the
ground that the Court Commissioner has not given
any notice to the respondent as per Order XXVI Rule
18 of CPC and discarded the Court Commissioner's
report and directed the trial court to appoint a fresh
Commissioner. That order has been questioned before
the Apex Court in Special Leave to Appeal (C)
Nos.12950-12951/2022. The Apex Court, by order
dated 17.11.2022 allowed the appeal. The relevant
paragraphs are extracted below:
"Having heard learned Senior Advocates
appearing for the respective parties, we are of
the opinion that, while passing the impugned
judgment and order, the High Court was not
justified in considering the legality and validity
of the Court Commissioner's Report. It should
have been left to the concerned trial Court to
take a call on the Court Commissioner's Report
and, of course, after giving an opportunity to
the respondents on the court Commissioner's
Report.
In view of the above, without expressing
anything on the legality and validity of the
Court Commissioner's Report, we set aside the
impugned common judgment and order passed
by the High Court.
We direct the learned trial Court to give an
opportunity to the parties, including the
respondents-herein, to make submissions on
the legality and validity of the Court
Commissioner's Report, before taking into
consideration the Court Commissioner's
Report. Now, the Court Commissioner's Report
be sent to the concerned Commercial Court by
the High Court within a period of two weeks
from the date of receipt of the present order.
Thereafter, it will be open for the respondents-
herein/original defendants to raise the
objections in writing on the Court
Commissioner's Report. It will also be open for
the petitioners to also make submissions on
the Court Commissioner's Report. That
thereafter, the learned Commercial Court to
take an appropriate decision on the objections
to be raised by the respondents on the Court
Commissioner's Report in accordance with law
and on its own merits and also after giving an
opportunity to the petitioners herein, before
finally taking into consideration the Court
Commissioner's Report any further.
It is abundantly made clear that we have not
expressed anything on merits on the Court
Commissioner's Report and it is ultimately for
the concerned Commercial Court to take an
appropriate decision in accordance with law
and on its own merits and considering the
earlier directions issued by the High Court
while directing to appoint the Court
Commissioner.
It also goes without saying that if the plaintiffs
propose to rely upon the Court Commissioner's
Report, in that case, the injunction application
shall be decided only after an appropriate
decision is taken by the Commercial Court on
the Court Commissioner's Report, as observed
hereinabove."
15. In view of the above, the point is answered
in the affirmative and the following order is passed:
(i) The writ petition is disposed of
(ii) Registry is directed to transfer the Court
Commissioner's report to the trial court.
(iii) The trial court is directed to pass
appropriate orders, in accordance with
law, deciding the legality and validity of
the Court Commissioner's report, after
giving an opportunity to both parties.
(iv) It is made clear that this Court has not
expressed any opinion on the merits of
the Commissioner's report. It is for the
trial court to take appropriate decision in
accordance with law, on its own merit.
(v) The trial court is also directed to dispose
of IA No.IV, in accordance with law, as
expeditiously as possible.
Sd/-
(H. T. NARENDRA PRASAD)
JUDGE
Cm/-
