S.L. Bhayana, J.@mdashBy this application, I propose to dispose of I.A. No. 4920/09, filed by applicant/ plaintiff under Order XXXIX Rules 1, 2, 7 and 10 read with Section 151 of Civil Procedure Code.
2. This case is related to infringement of copyright, passing off, unfair competition, rendition of accounts etc. and praying for perpetual injunction, damages and other relief against the Defendants.
3. By virtue of this application, plaintiff has prayed that the defendants be directed to deposit all monies and revenues that has been generated and collected by sale of Data Doctor for FAT and NTFS as also the varied variants, altered, modified, reproduced version under different names supported by different domain name registrars, web hosting service providers and payment gateways, be immediately seized and brought under the custody and control of this Court.
4. It is argued by the learned Counsel of the plaintiff that even after ad-interim ex-parte order dated 30/4/2008 defendants have continued to see the copied version of their software and has also placed on record list of certain websites of Prodata Doctor, list of new products and newly found websites belonging to the Defendants selling infringed software.
5. It is also alleged by the plaintiff that software downloaded by the plaintiff on 2nd April 2009 clearly shows that except for the names of Company/identity everything is identical and product is also same and they are still in its possession of the infringed source code.
6. During the course of arguments learned Counsel of the plaintiff also informed the court that pertaining to this fraud and infringement an FIR No. RC 0006/07 with CBI registered u/s 65 of Information Technology Act 2000 and Section 63 read with Section 14(6)(ii) of Copyright and Section 381 of Indian Penal Code has also been filed against the defendants. To support their case CBI has placed cyber forensic analysis report of the hard disk of the computer of Defendant No. 3 dated 12/5/08 from CFSL, there by showing that Defendant No. 3 was found using and infringing the software of the plaintiff. To be reproduced below as relevant:
GOVT. EXAMINER OF QUESTIONED DOCUMENTS GOVT. OF INDIA, HYDERABAD- 500013
The digital evidence storage media has been carefully and thoroughly analyzed
1. XXXXXXX
2. The words ''unistal'', ''quick recovery'' was found in the suspected digital evidence storage media marked Q2, Q9 and Q20 (imaged as CCH-62-93-2008-Q2, CCH-62-932008-Q9 and CCH-62-93-2008-Q20 respectively).
3. Folder match comparison of the folder ''9xNTFS'' found in the suspected digital evidence storage media marked Q2 (imaged as CCH-62-93-2008-Q2) with the folder ''9xNTFS'' found in the digital evidence storage media marked STD indicates that there are 89 identical files. The hard copy of the results is given at Annexure-A (Page Nos. 7-11).
4. Forensic analysis by using ''Resource Hacker'' indicates that there is several screen designs found in the suspected digital evidence storage media marked Q2, Q9 and Q20 (imaged as CCH-62-93-2008-Q2, CCH-62-932008-Q9 and CCH-62-93-2008-Q20 respectively), which are similar to the designs found in the digital evidence storage media, marked STD. The hard copy of the results is given at Annexure-A (Page Nos. 12-56).
5. Content match comparison of the file ''quickmode.cpp'' present in the folder ''9xNTFS'' found in the suspected digital evidence storage media marked Q2 (imaged as CCH-62-93-2008-Q2) with the corresponding file present in the folder ''9xNTFS'' found in digital evidence storage media marked STD indicates that there are 9382 lines of matches and 6 mismatches. The hard copy of the results is given at Annexure-A (Page Nos. 57-175).
7. Learned Counsel of the plaintiff further contended that CFSL report dated 12/5/08 clearly shows that Defendants are violating the order dated 30/4/08 of this Court and there are sufficient reasons for directing that all the monies coming from the sale of Data Doctor and NTFS and its variant and different copied products and version to be brought under the control and custody of this Hon''ble Court so that said money is not squandered or misutilized in any manner.
8. Learned Counsel of the plaintiff further contended that he is only seeking direction for deposit in the court money fetched by the Defendants by the sale of the copied products. According to the plaintiff, prima facie the plaintiff''s have interest in the money fetched by the Defendant on account of sale of their version of software by mere or slight alterations and has been protected vide order dated 30/4/09 on IA No. 5194/08 of the plaintiff under Order XXXIX Rule 1 and 2 of CPC, vide which defendant No. 3 was directed to stop the sale of the copied and identical version with that of the plaintiff. The counsel for the plaintiff has further contended that the plaintiff is not asking for their share but only seeking for deposit of the same in the court.
9. To oppose this application learned Counsel of the defendants argued that CFSL report cannot be looked into at this stage and in any case contents of the CFSL report are matter of criminal trial and the same needs to be proved in accordance with law before appropriate court to take the notice of their report. The CFSL report sought to be placed on record is wrong and misleading.
10. This application is a pressure tactics applied by the plaintiff with an intention of delaying the decision in the I.A. No. 9015/08 filed by the defendants under Order 39 Rule 4 thereby seeking a vacation of order dated 30/4/08.
11. Learned Counsel further argued that at this stage defendants could not be compelled to disclose his defence in the criminal case qua said report, it may have an adverse bearing on criminal trial and it is against his fundamental right guaranteed under Article 20(3) of the Constitution of India.
12. This is harsh case in which defendant is already suffering from an exparte injunction and if this application is allowed it would cause further loss to him.
13. On the merits of this case learned Counsel for the defendants argued that this is not a case of alleged misuse or theft of source code rather since both the plaintiff and defendants were using the same program i.e. Microsoft foundation classes, to make their own source code leading to final software products in question, it is but natural that both programs are bound to have certain alleged similarities in the visual lay out.
14. After hearing the learned Counsel of both the parties and going through the record and other documents like CFSL report etc. I am of the view that plea taken by the defendants have no legal basis to stand and are not tenable. This is a simple case of violation/breach of court order. Order XXXIX Rule 10 CPC is meant to take care of such kind of situation during the pendency of the suit. In such kind of circumstances court must weigh one need against another and determine where the balance of convenience lies. As there is apparent and sufficient material on record to show the breach of order of this Court. To my mind plaintiff is entitled to this relief since the defendants are continuing to sell the copied version and enjoying the benefits, he must deposit the proceeds of the same in the court. The Court can surely in a case of this kind, in fair exercise of its judicial discretion order for deposit of money pending decision of the suit for the purpose of doing justice or to prevent abuse of the process of the court.
15. In the result, this application is allowed. In the interest of justice, as per order passed above, the defendants are granted four weeks time to deposit the proceeds of sale of the Data Doctor for FATS and NTFS in the contravention of order dated 30.4.2008 of this Court.
16. The application stands disposed of.
CS (OS) 792/2008
List on 11.01.2010.
