Rajiv Sahai Endlaw, J.@mdashThe plaintiffs have instituted the present suit for an order of permanent injunction restraining the defendant from violating the plaintiffs'' copyright by way of unauthorized hard-disk loading of the plaintiffs'' software on the branded computers sold by him to his customers, and for ancillary reliefs of delivery-up, rendition of accounts and damages, pleading:
(I) that the plaintiff no. 1 Microsoft Corporation is a company organized and existing under the laws of the State of Washington, USA and engaged in manufacturing and licensing a range of software products, whereas plaintiff no. 2 Microsoft Corporation India Pvt. Ltd. is its wholly owned marketing subsidiary having its office in Nehru Place, New Delhi;
(II) that the popular software products developed and marketed by the plaintiffs such as MICROSOFT WINDOWS and MICROSOFT OFFICE are ''computer programs'' within the meaning of Section 2(ffc) of the Copyright Act, 1957 and included in the definition of ''literary works'' as per Section 2(o) of the Act and the plaintiffs being the owner of the copyright in the aforesaid literary works is entitled to all the exclusive rights flowing from such ownership enumerated u/s 14 of the Copyright Act;
(III) that the plaintiffs'' computer programs are ''works'' that have been first published and registered in the USA, and as such also enjoy protection in India by virtue of Section 40 of the Copyright Act read with the International Copyright Order, 1999;
(IV) that the plaintiffs in the month of January, 2007 learnt that the defendant Karan Puri-proprietor of M/s. Puri Computers located at Civil Lines, Jalandhar and engaged in marketing and selling computer hardware (including assembled computers and peripherals)-was infringing the plaintiffs'' copyrights and other intellectual property rights by unauthorized hard-disk loading of the plaintiffs'' software on the branded computers sold by him to his customers;
(V) that accordingly the plaintiffs deployed an independent investigator to purchase one of such computers being sold by the defendant and which confirmed that the defendant was offering his customers pre-loaded software of the plaintiffs without charging any additional costs;
(VI) that the computer purchased by the independent investigator from the defendant was also inspected by the plaintiffs'' technical expert and which revealed that software programs of the plaintiffs'' being MICROSOFT WINDOWS XP (Professional Version 2002) and MICROSOFT OFFICE (2002), were present on the computer without any authorization from the plaintiffs; and,
(VII) that since the software programs supplied by the defendant were not accompanied by the Certificate of Authenticity Label, Holographic CD and the User Manual which are supplied by the plaintiffs along with their software, it was evident that the software programs pre-loaded by the defendant on the hard-disk of the computer sold to the independent investigator were pirated versions.
This Court issued summons in the suit to the defendant on 28.05.2007 and vide order of the same date granted an ex-parte ad-interim injunction in favor of the plaintiffs. Since there was no appearance on behalf of the defendant despite due service of summons, the defendant was directed to be proceeded ex-parte vide order dated 23.05.2008 and the plaintiffs permitted to lead ex-parte evidence. Upon the plaintiffs closing its ex-parte evidence, the suit was listed for ex-parte hearing on 22.11.2013, when this Court stressed the need for the plaintiffs to also examine the independent investigator and the technical expert, upon whose reports the plaintiffs have predicated their case for infringement of copyright, and adjourned the matter for today to enable the plaintiffs to trace there whereabouts. Though the counsel for the plaintiffs has circulated an adjournment slip for today, but considering that the ex-parte matter has been languishing for more than six years now and that locating and examining the independent investigator and the technical expert would consume further substantial time, I have nevertheless perused the record to ascertain whether a decree can be passed forthwith.
2. The plaintiffs have examined two witnesses to support their case. The first witness Mr. Achuthan Sreekumar-the constituted attorney of the plaintiffs, has reiterated in his affidavit the case set out by the plaintiffs in the plaint and tendered in evidence the Court Certified Copies of Original Copyright Registration Certificates of the various software programs of the plaintiffs (including MICROSOFT WINDOWS XP and MICROSOFT OFFICE). The second witness Mr. B.K. Anand-a Chartered Accountant, has been examined by way of affidavit to evaluate the damages that may have accrued to the plaintiffs on account of the defendant''s activities. He has estimated the damages suffered by the plaintiffs on the assumptions that the defendant must have been selling computers with unauthorized software programs of the plaintiffs for at least one year and further that the defendant must have sold, even on a conservative estimate, a minimum of 48 computers in the period of one year. He has thereafter multiplied the market price of the software programs of the plaintiffs found on the defendant''s computer with the number of computers estimated to be sold (48), and arrived at a figure of Rs. 8,16,000/- as damages.
3. I would firstly deal with the primary relief of injunction. Though, as pointed out vide order dated 22.11.2013, it perhaps would have been desirable that the independent investigator and technical expert employed by the plaintiffs were personally examined, I do not see the omission to do so as being fatal to the case of the plaintiffs insofar as I find on the record the original duly notarized affidavits of the two and the contents whereof alongwith supporting documents filed as annexures thereto, in my opinion sufficiently corroborate and affirm the un-rebutted averments made in the plaint in this regard. There is no reason for this Court to disbelieve the said affidavits and a technical error, if any, in my opinion must not prevent the Court from passing an order of permanent injunction preventing infringement of intellectual property rights, where there is otherwise sufficient uncontroverted material on record to sustain such a finding. Moreover, by issuing such injunction, the Court is doing nothing more than enforcing the law as the activity which the defendant is proved to be indulging in, there can be no doubt, is illegal. I accordingly pass a decree for permanent injunction in terms of prayer paragraph (a) of the plaint and also order delivery-up of the infringing copies of the plaintiffs'' software programs.
4. Coming to the aspect of damages, though the financial loss computed is based on certain assumptions, but it cannot be helped for the reason that the defendant has chosen to remain ex-parte (see
