Vipin Sanghi, J.@mdashThe petitioners had instituted CS (OS) No. 947/2011 against two defendants. Later, defendant no 1 stood deleted from the array of parties on the application of the plaintiffs being LA No. 16146/2012, vide order dated 03.09.2012. The suit has been filed claiming injunction against infringement of the plaintiffs copyright, delivery up, rendition of accounts, damages etc, and the same is pending adjudication before this court. The case of the plaintiffs/petitioners is that the plaintiffs are software and digital content creation companies, with ownership of intellectual property rights in softwares for construction, manufacturing, infrastructures, digital media etc. The plaintiffs allege that the defendant company is using multiple copies of the plaintiffs software, including Auto CAD and its various versions for their business purposes without obtaining a single license from the plaintiffs. The petitioners, along with the suit filed LA. No. 6298/2011 to seek ad interim orders of injunction to restrain the said defendants from undertaking unauthorized use of the plaintiffs software.
2. Vide order dated 25.04.2011 the court granted an ex parte ad interim order of injunction on the aforesaid application, which was confirmed by this court vide order dated 22.04.2013, to operate till the disposal of the suit.
3. The petitioners had also filed an application being I.A. No. 6299/2011 under Order 26 Rule 9 r/w Order 39 Rule 7 for the appointment of a Local Commissioner to visit the premises of the defendant company, so as to make an inventory of the unlicensed softwares of the petitioners'' in use at the premises located at 142 A & B, Noida Special Zone, Phase II, Noida-201 305, or any other office or premises of the defendants, or any other place-where the commissioner had reason to believe that the plaintiffs'' unlicensed software was being used by the defendant, and seal the computer systems found loaded with unlicensed/pirated software of the petitioners. This Court allowed this application and appointed Ms. Meena Bhardwaj, an officer of this Court, as the Local Commissioner to carry out the aforesaid task. The Local Commissioner has filed her report, which forms the basis of the present petition.
4. As per the report of the Local Commissioner, she along with the petitioners'' counsel and technical experts reached the premises located at 142 A & B, Noida Special Economic Zone, Phase II, Noida 201305, to execute the commission, on 9th May 2011. However, she was obstructed by the defendants in executing the Commission.
5. In her report, the Local Commissioner, inter alia, records that on 09.05.2011 at about 01:05 P.M., she reached the said premises of the respondents and met Mr. Sanjeev Aggarwal, Chartered Accountant of the firm. The order of this Court was showed to him and he was apprised of the purpose of the Local Commissioner''s visit. Mr. Aggarwal spoke to the CMD and the counsel for the defendant company, and asked the Local Commissioner and others accompanying her to wait for some time. The Local Commissioner along with the plaintiffs'' counsel went to the Design Department which was on the entrance itself. The door had a paper banner "Design and Engineering" pasted on it. The Local Commissioner states that she went inside the said Department and counted that there were 16 computers. She also noticed certain other computer systems in various departments, i.e. Accounts, Materials and Quality Assurance.
6. Mr. Aggarwal came back and informed that Advance Valves Private Limited i.e. the defendant company is altogether a different entity and, from the address visited by the Local Commissioner only Advance Valves Global is operating. The Local Commissioner states that she explained paragraph 28 of the order to Mr. Aggarwal which, inter alia, directs that the Local Commissioner shall visit the premises at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305, or any other office or premises of the defendants-where the Commissioner has reason to believe that the plaintiffs'' unlicensed software is being used by the defendant. However, Mr. Aggarwal refused to allow the Local Commissioner to proceed with the commission.
7. At this stage, Mr. Rohit Modwel, Chief Business Development joined and stated that he is ready to take the Local Commissioner and others accompanying her at the other address of Advance Valves Pvt. Ltd. at: (a) D-8, Site B, Surajpur Industrial Area, Greater Noida; (b) Plot No 1, Industrial Area, Phase-II, P.O. Gagret, District Una, Himachal Pradesh; and (c) B-33, Sector 2, Noida-201 301. However, he refused permission to the Local Commissioner to audit/inspect systems lying at the premises visited by the Local Commissioner. Mr. Aggarwal and Mr. Modwel stated that Advance Valves Global is a partnership firm, and also provided copy of letter of the same day enclosing a copy of letter No. NSEZ/3-3/2003-Proj/3871 dated 23.06.2003 issued by the Deputy Development Commissioner, Noida Special Economic Zone to show that no firm with the name of Advance Valves Pvt. Ltd. is operating from the said address. From the report it appears that learned counsel for the petitioners showed to the Local Commissioner the various websites-to show that Advance Valves Pvt. Ltd. is situated at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. She states that she herself checked the links at their official website advancevalves.com, exportersindia.com/company/463689/advancevalves and google also.
8. The Local Commissioner states that she perused the ISO 9001:2008 certificate fixed on the wall of the room, where it was clearly written that the Corporate Office of the Advance Valves Pvt. Ltd. is 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. Even after explaining this aspect Mr. Rohit Modwel, Chief Business Development and Mr. Sanjeev Aggarwal still insisted that only Advance Valves Global operates from the said address and refused to allow inspection. The Local Commissioner states that she requested for a copy of the ISO certificate, which was refused by Mr. Aggarwal and Mr. Modwel and the Local Commissioner was not allowed to examine computer systems at the premises. The respondents informed the Local Commissioner that no firm with the name Advance Valves Pvt. Ltd. is operating from the address visited by the Local Commissioner. She states that in these circumstances, the commission could not be carried out. She states that the commission was concluded at 03:22 P.M. in the presence of learned counsel for the petitioners, Mr. Rohit Modwel, Chief Business Development and Mr. Sanjeev Aggarwal, Chief Finance Operations.
9. At that stage, Mr. Rohit Modwel after going through the spot proceedings clarified that the ISO: 9001:2008 certificate dated 06.03.2010 refers to the Advance Valves Group, which includes the Corporate Office and Sites 1, 2, 3 & 4. He further stated that sites 1 & 2 refer to defendant No. 2, which is not the same as 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The Local Commissioner was shown the website of nsez.gov.in which showed that the defendant company viz. Advance Valves Pvt. Ltd. exists and operates from 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305 with LOA No. 3-3/2003/Proj dated 22.04.2003 by DCP: 03/07/2003.
10. The Local Commissioner then notes the submission of Mr. Rohit Modwel that the aforesaid LOA was superseded by the letter of the same authority dated 23.06.2003 to indicate that the implementing agency will be Advance Valves Global.
11. The petitioners submit that on account of the non-cooperation, refusal and resistance from the respondents, the Local Commissioner finally decided to conclude the proceedings at 04.10 p.m. and handed over a copy of the on-the-spot proceedings to contemnor No 2.
12. The submission of learned counsel for the petitioners is that the conduct of the respondents in obstructing the execution of the commission, and deliberately refusing cooperation to the Local Commissioner to execute the Commission amounts to a calculated and willful disobedience of the orders of this Court. He submits that the purpose of such refusal was to prevent the unearthing of the illegality being committed by the defendants in using unlicensed software of the petitioners and thereby infringing their intellectual property rights. Learned counsel for the petitioners submits that the reason given by the respondents for refusing to allow the Local Commissioner to inspect the computer systems, which were found in the premises in question, is patently contrary to the record and to the knowledge of the respondents and, in any event, the order of this Court was wide enough to entitle the Local Commissioner to proceed to execute the Commission at the said premises of the respondents, and the respondents had no right to refuse compliance of the Court''s order. It was not for the respondents to decide whether, or not, the Local Commissioner was justified or entitled to execute the Commission at the said address. That was a decision for the Local Commissioner to take. There was sufficient material available with the Local Commissioner to decide that the Commission be executed at the said address.
13. Learned counsel for the petitioners has drawn the attention of the court to paragraph 28 of the order dated 25.04.2011 which, as aforesaid, directs that the Local Commissioner shall visit not only the named premises but any other office or premises of the defendant where the Commissioner has reason to believe that the plaintiffs'' unlicensed software is being used by the defendants. Even though the Local Commissioner was desirous of examining the computer systems situated at the premises bearing No. 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305-as it appeared that the computer systems in use in the said premises were being used by the defendant company-on account of the fact that the address of defendant No. 2 was reflected in several records as 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305, she was not permitted to proceed with her commission.
14. Learned counsel for the petitioners draws the attention of the court to the ISO certification awarded to "Advance Valves Group". The said group consists of (i) Advance Valves Pvt. Ltd., (ii) Advance Valves Company, and (iii) Advance Valves Global. Advance Valves Pvt. Ltd. is shown to have two sites, i.e. Sites 1 & 2. Site 1 is D-8, Site B, Surajpur Industrial Area, Greater Noida 201306; and Site 2 is Bharwain Road Gagret, District Una, Himachal Pradesh. The Corporate Office of all the entities forming Advance Valves Group-which includes Advance Valves Pvt. Ltd. is 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The certificate itself certifies that the management system of the above organization, i.e. entities comprising of Advance Valves Group have been audited and found to be in accordance with the requirement of standards detailed in the certificate. The Corporate Office has been certified for the purpose of "Design and development of check valves, butterfly valves and balancing valves for Site 1, 2, 3 & 4". Similarly, Site 1, 2 & 4 have been certified for "manufacture, supply and services of check valves and butterfly valves with accessories". Site No. 3 has been certified for "manufacture, supply and services of check valves, butterfly valves and balancing valves with accessories". On this basis, it is submitted by the petitioners that the aspect of design and development of the valves of Advance Valves Pvt. Ltd., which has its manufacturing facility at Sites 1 & 2 aforesaid, is situated at the Corporate Office address, i.e. 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The said certificate had been issued as late as on 09.02.2013. Learned counsel submits that at the Corporate Office the Local Commissioner found 16 computers in the Design and Development Department, apart from several other computers in other departments. The submission of the respondents that the Corporate Office of Advance Valves Pvt. Ltd. had no concern with defendant No. 2 is, therefore, patently false.
15. Attention is also drawn to the printouts obtained from several sites on the internet. One such website is exportersindia.com. On the said site, in respect of Advance Valves Pvt. Ltd., i.e. respondent No. 2 the contact details are mentioned as ''''Contact person: Mr. Sushil Kumar, Street: 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305". Similarly, on Jimtrade.com the information pertaining to defendant No. 2 Advance Valves Pvt. Ltd. shows the contact details as:
Address: 142 A&B, Noida Special Economic Zone, Phase-2, Noida, Uttar Pradesh-201305
Telephone No.: 91-0120-4796900/2523395/2528439
Fax No.: 91-0120 2462376/2553225
16. The petitioners next place reliance on printout from the website processregister.com. In respect of respondent No. 2, the address given is "142 A & B, Noida Special Economic Zone, Noida, Uttar Pradesh-201 305, India". Similarly on fundoodata.com, the details of respondent No. 2 Advance Valves Pvt. Ltd. are, inter alia, shown as "Address; 142 A&B, NSEZ, Phase 2; Level of Office: Head Office". On the website www.thomax.com, the details of respondent No. 2 Advance Valves Pvt. Ltd. are as follows: "Advance Valves Pvt. Ltd. 142 A&B, NSEZ, Phase-II, Noida-201301, Uttar Pradesh India Tel: 120-2523395 Fax: 2553225 Contact Person: Mr. Rajesh Gupta."
17. Learned counsel for the petitioners then draws attention of the Court to the Directory of list of functional units in the Noida Special Economic Zone. At Sl. No. 59 Advance Valves Pvt. Ltd. respondent No. 2 is mentioned and the address given is that of Plot No. 142 A&B. The names of Mr. Umashankar and Mr. Pranay S. Garg are mentioned as managers.
18. The petitioners have also filed documents with the rejoinder which have been referred to. Reference is made to the pamphlets of the defendant company, wherein they have themselves shown the same address as the Corporate Office of Advance Valves Pvt. Ltd., Advance Valves Global and Advance Valves Company. Even on the google website, a search for Advance Valves Pvt. Ltd. shows their address as 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The relevant printout has been placed on record and referred to. Few other documents have been placed on record pertaining to the websites vcsdata.com, neweramart.co and smehelpline.com, all of which show address of the defendant company as 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305.
19. In their reply, the respondents have sought to take the same stand as taken before the learned Local Commissioner. The respondents insist that the defendant company carries on business from a distinct address at Surajpur Industrial Area, Greater Noida; at Gagret, District Una, Himachal Pradesh; at B-33 Sector 2 Noida; at 11-G, Ashoka Place, 877, East Park Road, Karol Bagh, New Delhi. The respondents state that they had offered to take the Local Commissioner and the plaintiffs'' counsel to the said address. The respondents insist that the party located at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305 is Advance Valves Global, which is not a party to the suit and is distinct from Advance Valves Pvt. Ltd. The respondents have denied that the defendant company is located at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The respondents do not deny that Mr. Sanjeev Aggarwal informed the Local Commissioner that the defendant company was not located at the address in question and, therefore, the premises could not be inspected by the Local Commissioner. The respondents claim that the printouts of several websites, which show the address of the defendant company as 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305 do not reflect the correct position. It is submitted that merely because some third party websites "are showing the incorrect address does not mean that the Defendant is actually located at the said address". The respondents also deny that the ISO 9001:2008 certificate reflects that the Corporate Office of defendant No. 2 is located at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305. The respondents claim that the word "Corporate Office" "is a loose form which they have used in the certificate". The respondents deny that they are guilty of lowering the majesty, dignity and authority of this Court by not respecting and complying with its orders. They deny that they have committed contempt of the orders passed by this Court. The reply is supported by the affidavits of the two respondents Mr. Sanjeev Aggarwal and Mr. Rohit Modwel.
20. I may note that though the respondents have placed on record copies of a few retail invoices issued to Advance Valves Global, none has been placed on record in respect of the invoices issued to the defendant company, or by the defendant company to its customers.
21. Having heard learned counsel for the parties and perused the entire record above referred to, it is absolutely clear to me that the respondents have willfully, deliberately, knowingly and consciously disobeyed orders of this Court dated 25.04.2011 on the patently false and specious plea that the defendant company Global Valves Pvt. Ltd. had no concern with the activities being undertaken at 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305.
22. First & foremost, the decision on the issue whether, or not, a particular premises/office should be inspected by the Local Commissioner was a decision which had to be taken only by the Local Commissioner. The respondents did not have the option whether, or not, to offer a particular premises for the purpose of carrying out the inspection/commission. This is clear from the first direction issued in paragraph 28(1) of the order dated 25.04.2011 which, inter alia, states that the Local Commissioner is appointed "to inspect the premises of the defendants detailed against their name or any other office or premises of the defendants or to visit where the Commissioner has reason to believe that the plaintiffs'' unlicensed software is being used by the defendants". Therefore, the premises in question was required to be inspected under the orders of the Court and the Local Commissioner had the authority to inspect any other premises, or office where the Local Commissioner had reason to believe that the plaintiffs'' unlicensed software is being used by the defendant company.
23. Even if the submission of the respondents were to be accepted for the sake of arguments, though there is no merit in the same, that the defendant company was located at the various locations mentioned aforesaid in paragraph 20, that by itself did not permit the respondents to obstruct the execution of the Commission by the Local Commissioner at 142 A & B, Noida Special Zone, Phase II, Noida-201 305 for the reason that the Local Commissioner had ample reason to believe that the defendant company was also located at the premises in question and, therefore, its unlicensed software was being used at the premises in question. The Local Commissioner found 16 computers in the "Design and Engineering" Section of the said premises. The ISO certificate established that the said premises-which was also the corporate office of the defendant company, was being used for Design and Development of check valves, butterfly valves and balancing valves for, inter alia, sites 1 & 2. The said sites are where the manufacturing, supplying and servicing facility of the defendant company is located.
24. The report of the Local Commissioner is replete with documentary evidence on the basis of which the Local Commissioner formed her belief as aforesaid vis-�-vis the premises in question. The respondents also admit the existence of such voluminous documentary evidence, which was relied upon by the petitioners and the Local Commissioner, to require the respondents to provide inspection to the Local Commissioner. In spite of the same, the respondents did not relent and consciously and deliberately disobeyed the orders of the Court by not respecting the authority and mandate of the Local Commissioner.
25. A Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. Therefore, a Local Commissioner is appointed to act as the eyes and ears of the Court so that local investigation could be carried out for the purpose of elucidating the matters in dispute. In matters involving allegations of infringement of intellectual property rights, the execution of the local commission and the report furnished by the Local Commissioner assumes great significance, as the breach of copyright in softwares-which resides in electronic form, may go undetected unless computer systems of the defendant are examined and investigated before the defendant gets a chance to destroy the evidence of use of such software by deleting the software from the computer system.
26. The respondents do not deny that their own ISO certification shows the Corporate Office of the defendant company as 142 A & B, Noida Special Zone, Phase II, Noida-201 305. They claim the same to be a "loose term" used in the certificate. While making such preposterous statements, the respondents conveniently forget that the ISO certificate was issued at the instance of the defendant company and the other constituents of the Advances Valves Group, and it is they who had furnished the information to the certifying agency. The respondents have sought to distance themselves from each of the pieces of evidence referred to by the Local Commissioner in her report, and also referred to before this Court by the petitioners, by claiming that they are not responsible if an incorrect information of the defendant company is reflected on the various websites and records of, inter alia, Noida Special Economic Zone Authority. I find the stand of the respondents to be untruthful. It is not disclosed as to what steps the respondents, the defendant company, or even Advance Valves Global ever took to correct the so-called mistake which allegedly exists in reporting the address of the defendant company as 142 A & B, Noida Special Zone, Phase II, Noida-201 305 at so many sites and places. It is not explained as to how the so-called incorrect information consistently got reflected at so many locations and sites if the same was not provided by the management of the defendant company/Advance Global Group.
27. "Civil Contempt" is defined in Section 2(b) of the Contempt of Courts Act, 1971 to mean "willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court". The respondents have willfully disobeyed the orders of this Court by not permitting the Local Commissioner to execute her Commission at the address in question. The present is not a case where the Local Commissioner desired to carry out the Commission/investigation at a wholly unrelated premises. Firstly, the premises itself was named in the order of the Court, authorizing the Local Commissioner to inspect the same. Secondly, the premises was the premises of the defendant company, inasmuch, as it was their Corporate Office and the Design and Development Centre for the check valves, butterfly valves and balancing valves manufactured by the defendant company-as is evidenced from the ISO certificate. The refusal of the respondents to allow the execution of the Local Commission is clearly deliberate, willful and mala fide.
28. The respondents have further compounded their disobedient and defiant conduct by exhibiting the audacity to even now not come out truthfully before this Court. The respondents continue to falsely insist, even in the face of overwhelming evidence on record-which includes their own printouts and the ISO certificate, that the address visited by the Local Commissioner, i.e. 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305, is not the Corporate Office of defendant No. 2, as also the Design and Development Centre for check valves, butterfly valves and balancing valves manufactured at the sites of Advance Valves Pvt. Ltd. at Sites 1 & 2 mentioned in the certificate issued by the Bureau Veritas. Therefore, the respondents are guilty of committing civil contempt in terms of Section 2(b) of the Act. However, the aforesaid conduct cannot be termed as criminal contempt u/s 2(c) of the Act.
29. I may note that only after hearing of the present petition had been concluded, for the first time, the respondents sought to tender their unconditional apology vide their affidavits dated 10.09.2013. The affidavits tendered by the two respondents are identical. The relevant extract from the said affidavits reads as follows:
2. That in view of the advice given to me, that all hardware and software assets belonged to Advance Valves Global, which was not party to the court proceedings, I did not allow the Learned Local Commissioner and the Plaintiff to conduct the Court appointed commission on May 9, 2011.
3. That the deponent has the highest and abiding faith in the institution of Judiciary and it has not been my intention of doing anything which would undermine the dignity and prestige of the institution.
4. That the deponent hereby tenders unconditional apology before this Hon''ble Court for the incident which took place on May 9, 2011 before the Court appointed commissioner, out of which this contempt proceedings arise and further undertakes to maintain a good behaviour in future.
30. The apology tendered by the two respondents does not inspire confidence and is merely an endeavor of the respondents to get away scot-free for their deliberate and willful defiance of the orders of the Court. The apology tendered by the two respondents is not to the satisfaction of this Court. The stand taken by the two respondents in their affidavits of apology is at variance with the stand taken by them before the Local Commissioner and in their respective replies. They now, for the first time, claim that they acted on advice given to them. However, it is not disclosed as to on whose advice they so acted. They do not disclose as to when and how this advice was rendered. For the first time, they claim that all the hardware and software assets at the premises in question belonged to Advance Valves Global. No such statement appears to have been made before the Local Commissioner, or even in their replies. Even with the affidavits of apology, apart from their ipse dixit, there is no material produced to support or substantiate the said plea. The statements of the respondents that they have the highest and abiding faith in the institution of this Court, or that they did not intend to do anything which would undermine the dignity and prestige of this institution does not inspire confidence. Pertinently, even at this stage, the respondents do not state that they are, even now, willing to comply with the order of the Court and grant inspection to the Local Commissioner. I may hasten to add here that even if such an offer were to be made, it may prove futile for the purpose of the plaintiffs, as the defendant company and the respondents herein have had sufficient time to cover up their alleged illegalities in infringing the plaintiffs'' copyrights. For the apology to be considered genuine and acceptable, it should come at an early stage. Consequently, the apology tendered by the two respondents is rejected. The respondents are held guilty of civil contempt.
