Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : December 15, 2014
DECIDED ON : January 27, 2015
+ CS(OS) 1842/2008
SYMANTEC SOFTWARE SOLUTIONS PVT. LTD. & ORS
..... Plaintiffs
Through : Mr.R.K.Virmani, Sr.Advocate with
Mr.P.Anand, Mr.Shantanu &
Mr.Ashish, Advocates.
versus
MS. R. MODI & ORS. ..... Defendants
Through : Mr.C.M.Lall, Advocate with
Ms.Nancy Roy, Advocate.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
The order is pronounced today as 23.01.2015 was declared holiday
on account of Full Dress Rehearsal of Republic Day, 2015.
IA No.22920/2012 (For recalling the summons issued to witnesses)
1. The instant suit is for permanent injunction restraining
infringement of copyrights, delivery up, rendition of accounts, damages
etc. instituted by the plaintiffs against the defendants. After the settlement
of issues on 26.10.2009 and two additional issues on 4.10.2010, the
IA No.22920/2012 in CS(OS) No.1842/2008 Page 1 of 7
plaintiffs examined five witnesses PW-1 (Ashwin Mehta), PW-2 (Gaurav
Shankar), PW-3 (Ms.Tanu Arora), PW-4 (Vinish Mehra) and PW-5
(Sachin Patel). They all except (PW-5) were cross-examined at length on
various dates before the Local/Court Commissioner. The plaintiffs
concluded their evidence before April 2011. On 26.04.2011 six weeks
time was given to the defendants to produce evidence before the Local
Commissioner. The defendants were burdened with costs ` 10,000/- for
not complying with the order and by an order dated 3.11.2011 they were
directed to file list of witnesses within a week. List of witnesses filed by
the defendants is on record where the defendants opted to examine
Ms.Rupali Modi and other witness (if any) with the permission of the
Court. It appears that subsequently an application was moved in the
Registry to summon seven witnesses for examination before the Local
commissioner. Summons were issued to the witnesses for appearance.
2. The instant IA has been filed to recall the order summoning
these witnesses as they are officials of the plaintiffs and only purpose to
examine them is to harass them. Their evidence is not at all relevant. In
reply, the defendants have emphasized that all these witnesses are relevant
for recording findings on two additional issues. Their names have
appeared in the cross-examination of the various witnesses examined by
IA No.22920/2012 in CS(OS) No.1842/2008 Page 2 of 7
the plaintiffs. In para No.9 reasons have been given for summoning the
said witnesses.
3. Record further reveals that the plaintiffs volunteered to
produce Mr.Anil Nayyar as a witness before the Court Commissioner.
4. I have heard the learned counsel for the parties and have
examined the record. In the initial list of witnesses filed on record by the
defendants, these witnesses were not cited or mentioned. Subsequently,
the defendants without disclosing relevancy of these witnesses moved the
application to summon them before the Court Commissioner. The
defendants intend to examine seven witnesses who are admittedly officials
/officers of the plaintiffs’ company and were not examined by them.
5. So far as PW Anil Nayyar is concerned, he has already been
permitted to be examined before the Court Commissioner.
6. Regarding PW-Achuthan Sreekumar, in my view, his
testimony is necessary to decide the institution of the suit by a duly
authorized person. He is the Constituted Attorney of the plaintiffs and has
put his signatures on the plaint on their behalf. Specific issue regarding
his competence and authority to institute the suit on behalf of the plaintiffs
has been settled and onus to prove it is on the defendants. The plaintiffs
IA No.22920/2012 in CS(OS) No.1842/2008 Page 3 of 7
themselves did not opt to examine him in their evidence though
admittedly he had signed and verified the plaint.
7. So far as witness Ms.Rohini Boez is concerned, the plaintiffs
themselves had cited her a witness in their list of witnesses (page 216).
However, she was not examined by the plaintiffs. In the cross-
examination, PW-2 (Gaurav Shankar) revealed that Ms.Rohini Boez had
received information regarding the alleged use of unlicenced pirated
software of the plaintiffs by the defendants. Under these circumstances,
she is a relevant witness to be examined .
8. Regarding PW-Inzamuni, the plaintiffs in the application
have stated that he is unknown to plaintiff No.4 and his presence is not
required as a witness. His name emerged only in the cross-examination of
PW-1 (Ashwin Mehta). Plea of the learned counsel for the defendants is
that PW-1 (Ashwin Mehta) was unable to answer the questions regarding
financial dealings of the plaintiffs with BSA. I have scrutinized the cross-
examination of PW-1 (Ashwin Mehta) running into 148 questions. Name
of Hiroshi Inzamuni surfaced when question was put by the plaintiffs as to
name the people who would have the information in detail (Q.No.116).
The witness gave the name of Hiroshi Inzamuni with the rider that he was
not sure. No specific role has been attributed to Hiroshi Inzamuni as to
IA No.22920/2012 in CS(OS) No.1842/2008 Page 4 of 7
how the financial dealings of the plaintiffs with BSA are relevant for
deciding the dispute between the parties. Merely because his name has
surfaced in the cross-examination pursuant to the questions put by the
defendants’ counsel, the witness cannot be summoned for examination.
9. The defendants intend to examine Keshav S.Dhakad and PW-
Tarun Sawhney merely because their names have emerged in the cross-
examination of PW-4 (Vinish Mehra). When asked to name the members
of the Committee, PW-4 (Vinish Mehra) disclosed that the Committee
comprised of Mr.Keshav S.Dhakad, the then BSA Chair and Mr.Tarun
Sawhney, Director (Anti-piracy), APAC, BSA and he himself. He further
replied to another question that Mr.Keshav S.Dhakad was the member
representative in the Committee. There was no other company
representative. Another question was put by the counsel to PW-4 (Vinish
Mehra) that the witness was aware that Mr.Anil Nayar took up
employment wrongfully with a private investigation agency having
foreign directors while in a sensitive position in the Army and this
information was known to Mr.Sawhney and Mr.Dhakad. The witness
expressed his ignorance of any such alleged incriminating information.
He volunteered that to his belief Anil Nayar took voluntary retirement
from the Indian Army and is a pensioner. It is not disclosed as to how
IA No.22920/2012 in CS(OS) No.1842/2008 Page 5 of 7
examination of Mr. Keshav S.Dhakad and Tarun Sawhney is relevant in
the instant suit.
10. The defendants intend to summon Karishma Gandhi as in the
cross-examination of PW-3 (Ms.Tanu Arora) she revealed that she had
access to information regarding accounts of BSA. Perusal of the cross-
examination of PW-3 reveals that all the relevant answers have been given
in detail by the witness. If her testimony read as a whole, the presence of
Ms.Karishma Gandhi is not required to answer any further question. She
has merely stated in response to question 24 as to who in her company had
access to this information. The witness has stated that at present it was
Ms.Karishma Gandhi. On asking her designation, she revealed that her
designation was Brand Protection Specialist.
11. In the light of the above discussion, I am of the view that the
evidence of Keshav S.Dhakad, Tarun Sawhney, Karishma Gandhi and
Inzamuni is not relevant for resolving the controversy raised in the suit.
Simply because their names have appeared in the cross-examination of
certain witnesses pursuant to the questions put to them, they cannot be
permitted to be examined by the defendants.
12. Regarding Anil Nayar, Achuthan Sreekumar and Rohini
Boez, in my view, they are required to be examined by the defendants in
IA No.22920/2012 in CS(OS) No.1842/2008 Page 6 of 7
their evidence. The defendants have taken the risk to examine these
official witnesses of the plaintiffs at their own risk.
13. The IA stands disposed of accordingly.
CS(OS) 1842/2008
Put up before the Roster Bench on 3.2.2015 for further
directions.
(S.P.GARG)
JUDGE
JANUARY 27, 2015
sa
IA No.22920/2012 in CS(OS) No.1842/2008 Page 7 of 7
RESERVED ON : December 15, 2014
DECIDED ON : January 27, 2015
+ CS(OS) 1842/2008
SYMANTEC SOFTWARE SOLUTIONS PVT. LTD. & ORS
..... Plaintiffs
Through : Mr.R.K.Virmani, Sr.Advocate with
Mr.P.Anand, Mr.Shantanu &
Mr.Ashish, Advocates.
versus
MS. R. MODI & ORS. ..... Defendants
Through : Mr.C.M.Lall, Advocate with
Ms.Nancy Roy, Advocate.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
The order is pronounced today as 23.01.2015 was declared holiday
on account of Full Dress Rehearsal of Republic Day, 2015.
IA No.22920/2012 (For recalling the summons issued to witnesses)
1. The instant suit is for permanent injunction restraining
infringement of copyrights, delivery up, rendition of accounts, damages
etc. instituted by the plaintiffs against the defendants. After the settlement
of issues on 26.10.2009 and two additional issues on 4.10.2010, the
IA No.22920/2012 in CS(OS) No.1842/2008 Page 1 of 7
plaintiffs examined five witnesses PW-1 (Ashwin Mehta), PW-2 (Gaurav
Shankar), PW-3 (Ms.Tanu Arora), PW-4 (Vinish Mehra) and PW-5
(Sachin Patel). They all except (PW-5) were cross-examined at length on
various dates before the Local/Court Commissioner. The plaintiffs
concluded their evidence before April 2011. On 26.04.2011 six weeks
time was given to the defendants to produce evidence before the Local
Commissioner. The defendants were burdened with costs ` 10,000/- for
not complying with the order and by an order dated 3.11.2011 they were
directed to file list of witnesses within a week. List of witnesses filed by
the defendants is on record where the defendants opted to examine
Ms.Rupali Modi and other witness (if any) with the permission of the
Court. It appears that subsequently an application was moved in the
Registry to summon seven witnesses for examination before the Local
commissioner. Summons were issued to the witnesses for appearance.
2. The instant IA has been filed to recall the order summoning
these witnesses as they are officials of the plaintiffs and only purpose to
examine them is to harass them. Their evidence is not at all relevant. In
reply, the defendants have emphasized that all these witnesses are relevant
for recording findings on two additional issues. Their names have
appeared in the cross-examination of the various witnesses examined by
IA No.22920/2012 in CS(OS) No.1842/2008 Page 2 of 7
the plaintiffs. In para No.9 reasons have been given for summoning the
said witnesses.
3. Record further reveals that the plaintiffs volunteered to
produce Mr.Anil Nayyar as a witness before the Court Commissioner.
4. I have heard the learned counsel for the parties and have
examined the record. In the initial list of witnesses filed on record by the
defendants, these witnesses were not cited or mentioned. Subsequently,
the defendants without disclosing relevancy of these witnesses moved the
application to summon them before the Court Commissioner. The
defendants intend to examine seven witnesses who are admittedly officials
/officers of the plaintiffs’ company and were not examined by them.
5. So far as PW Anil Nayyar is concerned, he has already been
permitted to be examined before the Court Commissioner.
6. Regarding PW-Achuthan Sreekumar, in my view, his
testimony is necessary to decide the institution of the suit by a duly
authorized person. He is the Constituted Attorney of the plaintiffs and has
put his signatures on the plaint on their behalf. Specific issue regarding
his competence and authority to institute the suit on behalf of the plaintiffs
has been settled and onus to prove it is on the defendants. The plaintiffs
IA No.22920/2012 in CS(OS) No.1842/2008 Page 3 of 7
themselves did not opt to examine him in their evidence though
admittedly he had signed and verified the plaint.
7. So far as witness Ms.Rohini Boez is concerned, the plaintiffs
themselves had cited her a witness in their list of witnesses (page 216).
However, she was not examined by the plaintiffs. In the cross-
examination, PW-2 (Gaurav Shankar) revealed that Ms.Rohini Boez had
received information regarding the alleged use of unlicenced pirated
software of the plaintiffs by the defendants. Under these circumstances,
she is a relevant witness to be examined .
8. Regarding PW-Inzamuni, the plaintiffs in the application
have stated that he is unknown to plaintiff No.4 and his presence is not
required as a witness. His name emerged only in the cross-examination of
PW-1 (Ashwin Mehta). Plea of the learned counsel for the defendants is
that PW-1 (Ashwin Mehta) was unable to answer the questions regarding
financial dealings of the plaintiffs with BSA. I have scrutinized the cross-
examination of PW-1 (Ashwin Mehta) running into 148 questions. Name
of Hiroshi Inzamuni surfaced when question was put by the plaintiffs as to
name the people who would have the information in detail (Q.No.116).
The witness gave the name of Hiroshi Inzamuni with the rider that he was
not sure. No specific role has been attributed to Hiroshi Inzamuni as to
IA No.22920/2012 in CS(OS) No.1842/2008 Page 4 of 7
how the financial dealings of the plaintiffs with BSA are relevant for
deciding the dispute between the parties. Merely because his name has
surfaced in the cross-examination pursuant to the questions put by the
defendants’ counsel, the witness cannot be summoned for examination.
9. The defendants intend to examine Keshav S.Dhakad and PW-
Tarun Sawhney merely because their names have emerged in the cross-
examination of PW-4 (Vinish Mehra). When asked to name the members
of the Committee, PW-4 (Vinish Mehra) disclosed that the Committee
comprised of Mr.Keshav S.Dhakad, the then BSA Chair and Mr.Tarun
Sawhney, Director (Anti-piracy), APAC, BSA and he himself. He further
replied to another question that Mr.Keshav S.Dhakad was the member
representative in the Committee. There was no other company
representative. Another question was put by the counsel to PW-4 (Vinish
Mehra) that the witness was aware that Mr.Anil Nayar took up
employment wrongfully with a private investigation agency having
foreign directors while in a sensitive position in the Army and this
information was known to Mr.Sawhney and Mr.Dhakad. The witness
expressed his ignorance of any such alleged incriminating information.
He volunteered that to his belief Anil Nayar took voluntary retirement
from the Indian Army and is a pensioner. It is not disclosed as to how
IA No.22920/2012 in CS(OS) No.1842/2008 Page 5 of 7
examination of Mr. Keshav S.Dhakad and Tarun Sawhney is relevant in
the instant suit.
10. The defendants intend to summon Karishma Gandhi as in the
cross-examination of PW-3 (Ms.Tanu Arora) she revealed that she had
access to information regarding accounts of BSA. Perusal of the cross-
examination of PW-3 reveals that all the relevant answers have been given
in detail by the witness. If her testimony read as a whole, the presence of
Ms.Karishma Gandhi is not required to answer any further question. She
has merely stated in response to question 24 as to who in her company had
access to this information. The witness has stated that at present it was
Ms.Karishma Gandhi. On asking her designation, she revealed that her
designation was Brand Protection Specialist.
11. In the light of the above discussion, I am of the view that the
evidence of Keshav S.Dhakad, Tarun Sawhney, Karishma Gandhi and
Inzamuni is not relevant for resolving the controversy raised in the suit.
Simply because their names have appeared in the cross-examination of
certain witnesses pursuant to the questions put to them, they cannot be
permitted to be examined by the defendants.
12. Regarding Anil Nayar, Achuthan Sreekumar and Rohini
Boez, in my view, they are required to be examined by the defendants in
IA No.22920/2012 in CS(OS) No.1842/2008 Page 6 of 7
their evidence. The defendants have taken the risk to examine these
official witnesses of the plaintiffs at their own risk.
13. The IA stands disposed of accordingly.
CS(OS) 1842/2008
Put up before the Roster Bench on 3.2.2015 for further
directions.
(S.P.GARG)
JUDGE
JANUARY 27, 2015
sa
IA No.22920/2012 in CS(OS) No.1842/2008 Page 7 of 7