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IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 419/2008
AUTODESK, INC and ANR ..... Plaintiffs
Through Mr. Saikrishna Rajagopal, Ms. Sajia Saiel,
Advocates
versus
MR. A.V..T SHANKARDASS and ANR ..... Defendants
Through
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
O R D E R
05.03.2008
Issue summons to the defendants by ordinary process, registered AD,
through approved courier and Dasti as well returnable on 11th March, 2008.
I.A. 2853/2008 (Order XIII Rule 1)
Learned counsel for the plaintiffs states that original documents would
be filed within four weeks.
The application is accordingly disposed of.
I.A. 2854/2008
Learned counsel states that the court fee in this case would be filed
during the course of day.
The application is accordingly disposed of.
Contd....................2
: 2 :
I.A. 2851/2008 (Order 39 Rules 1 and 2)
Issue notice returnable on 11th March, 2008. Dasti in addition.
I.A. 2852/2008 (Order 26 Rule 9 r/w Order 39 Rule 7)
1. The plaintiffs/applicants seek appointment of the Local Commissioner.
It is alleged in the plaint as well as in the application that the defendant is
carrying on its activity in Mumbai. According to the plaintiffs, the defendants
hold one licence for its product i.e. 3DS Max. The plaintiffs have relied upon
the copy of the print out of the defendant's Website in support of this
application to contend that the later claims to be engaging itself in designing
products of various kinds including Character Design and Character Animation and
that it claims to use the latest state of the art software. Reliance is also
placed on the print out which asserts the defendants invested heavily in the
software system and that it believes that further advancement leads to further
activities.
2. It is asserted on the strength of these claims, the plaintiffs'
Investigator Sh. Jatin Batra made a telephone call to the defendants. The
material portion of this affidavit is to the following effect:
``I say that I was connected to Mr. Vinod who identified himself as an Executive
working in the design department of Media Factory India Pvt. Ltd. I say that,
Mr. Vinod confirmed the full name as well as the postal address of the aforesaid
company. I affirm that Mr. Vinod informed me that Media Factory Pvt. Ltd.
employs about 50 animators. I say that Mr. Vinod informed me that the animation
work is mainly done on 3ds Max and Autodesk Maya which are loaded on
approximately 30 machines.'`
Contd....................3
: 3 :
3. On the above material, Mr. Saikrishna, learned counsel for the
plaintiffs contends that the Court should be able to presume infringement by the
defendant and issue an order to appoint a Local Commissioner. He relied on
paras 26 to 28 of the plaint. Learned counsel contended that unless this course
of action adopted, the plaintiff would be prejudiced gravely as there is every
likelihood of evidence of such presumed infringement being erased.
4. Counsel also contended that in cases, it is very difficult for the
plaintiffs to show how the defendants are actually indulging in acts of
infringement and the Court has to proceed only assumption of such
infringement.
5. In support of the application, learned counsel relied upon orders of
this Court in CS(OS) 120/2008, CS(OS) 121/2008, CS(OS) 122/2008, CS(OS) 42/2008
to say that a consistent practice developed followed whereby on the basis of
such affidavits, the Court has been appointing Local Commissioner to visit the
site of the defendants and seize such materials as are necessary. Learned
counsel also relied upon an order of the Division Bench in FAO(OS) 94/2008
whereby the Division Bench interfered with the exercise of the discretion of the
single Judge and held as follows:
``in the peculiar facts and circumstances of this case and considering the
nature of the suit and the subject matter of the property which is sought to be
preserved, it was necessary to appoint a Local Commissioner ex parte without
notice for the preservation of the evidence as was prayed.'`
6. Learned counsel relied upon a ruling of the Madras High Court reported
as Ponnusamy
Contd....................4
: 4 :
Pandaram vs. The Salem Vaiyappamalai Jangamar Sangam, AIR1986 Mad. 33 to say
that the necessity for appointing the Local Commissioner is to l elucidate a
point which may otherwise be left in doubt or ambiguity on athe record. The
Court also held that the Commissioner is in effect is a projection of the Court
and that the implication of O. 26 R.10 cannot be lost sight of when it says
that the report of the Local Commissioner and the evidence taken by him shall be
evidence in the suit and shall form part of the record.
7. During the course of hearing, learned counsel did not dispute the
possibility of software other than the plaintiffs' or free software being used
by the defendants. He, however, asserted that the plaintiffs have predominant
presence in respect of the software i.e. Autodesk Maya.
8. The objective of an interlocutory order appointing a Local
Commissioner, it has been held by a Division Bench of the Calcutta High Court in
the judgment reported as The Owners and Parties Interested in the Vessel M.V.
``Baltic Confidence'` vs. The State Trading Corporation of India Ltd. and Anr.,
AIR 2000 Cal. 91 is not for the purpose of collecting evidence or assessing the
damages allegedly suffered by the plaintiff. Earlier in another ruling by the
Orissa High Court reported as Basanta Kumar Swain vs. Baidya Kumar Parida and
Ors., AIR 1989 Ori. 118, the Court had held that the power under Order. 26 Rule
9 is not to assist a party to collect evidence where it can get the evidence
itself.
9. Undoubtedly, the Division Bench in the interlocutory appeal on an
assessment of the peculiar
Contd....................5
: 5 :
facts was persuaded to (in FAO (OS) 94/2008) appoint a Local Commissioner
although the single Judge declined to do so.
10. The discretion to appoint Local Commissioner in cases of copyright or
other actions claiming infringement of intellectual property rights owes its
origin to the ruling in Anton Pillar vs. Mfg. Process, 1976 (Ch.) 55. The Court
had laid down three conditions to enable the appointment of Local Commissioner.
They are:
i) An extremely strong prima facie case being made out by the
plaintiff;
ii) The claimant should have suffered or is likely to suffer very
seriously or irreparable
damage, if the order is refused;
iii) Clear evidence that the defendant has incriminating material
or document in its possession.
11. On an application of the principles under Order 26 Rule 9 as indicated
in the above judgments and the Anton Pillar rule which has now been accepted
widely, what can be discerned in this case as materials are :
a) The Affidavit of Sh. Jatin Batra who, the plaintiffs' counsel
conceded, is engaged on contract basis. Sh. Batra claims to have conversed with
the representative of the defendants from on office at NOIDA. According to this
affidavit, the employee of the defendants admitted use of the Plaintiffs'
software in 30 systems. No other material in support has been placed; Shri
Contd....................6
: 6 :
Batra did not visit the defendants or carry out any other investigation;
b) The print out of the Website of the defendants which is merely
indicates that it is engaging itself in development of Software of 3d animation
products.
12. On an analysis in record, this Court is not persuaded to an uncritical
acceptance of the plaintiffs' assertion regarding alleged infringement by the
defendants. The materials do not amount to existence of a strong prima facie
case or ``clear'` evidence that the defendants have incriminating materials or
documents. The question of protection evidence likely to be erased does not
arise, because the materials do not point to any credible or reasonable
suspicion; the Court is merely invited to presume a state of affairs. In the
peculiar circumstances of this case, the application for appointment of Local
Commissioner cannot be granted; I.A. 2852/2008 is accordingly dismissed.
13. Order Dasti.
S. RAVINDRA BHAT,J
MARCH 05, 2008
dkg
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