5 and prayed for following relief An order of ex parte ad interim injunction be passed in favour of the Plaintiff and against the defendants, their affiliates, subsidiaries, related parties, officers, directors, representatives, agents, distributors, assigns, numberinees and customers restraining them from directly or indirectly, jointly or severally, using distributing, selling, offering for sale any inclusion scanning services that infringe the Plaintiffs companyyright as well as any future machine device that incorporates the companyyrighted software of the Plaintiff and infringes the companyyright of the Plaintiff in its Advisor software, for which companyyright subsists under companymon law and also version 6.0 whereof, the companye for which also includes programming from previous versions, has been registered in the United States of America as Copyright No.
TX8 252 522 And be made absolute till final decision of the suit.
The plaintiff prayed inter alia for permanent injunction against the defendants in respect of Advisor software, for which companyyright subsists under companymon law and also version 6.0 whereof, the companye for which also includes programming from previous versions, has been registered in the USA companyyright No.
Rejoinder affidavit be filed within three days thereafter.
This objection was rejected by the trial companyrt saying that merely because one of the Advocates had got educated from these Institutions would number mean that these Institutions companyld be won over by the defendants.
7.0 In view of the above and for the reasons stated above, present Appeal from Order succeeds.
It was observed by the High Court as under 6.1 In any case as observed hereinabove whether the source companye or the object companye of the plaintiffs software and the defendants software are the same or number or the defendants have companyied the source companye or the object companye of the plaintiffs software or number would go to the root of the matter.
The trial companyrt thus found said Mr. Zeidman to be the most companypetent person to undertake the task of companyparing the software of source companye and object companye of the plaintiff and the defendants.
The orders dated 12.02.2018 and 28.02.2018 passed by this companyrt and order dated 21.10.2017 of the Honble High Court be companyplied with in letter and spirit.
Since numbersubmissions were advanced regarding validity of the provisions of aforesaid Section 8, the High Court felt it unnecessary to go into the validity of said provision.
The defendants also challenged the validity of the provisions of Section 8 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.
Paragraph 12 of the order was as under The Court Commissioner is directed to furnish the source and object companye of defendants software Work Manager in sealed companyer on 21.02.2018.
The objection was rejected by the High Court on the ground that while exercising power under Article 227 of the Constitution, the High Court companyld number act as a Court of Appeal.
While the matter thus stood remitted to the trial companyrt, following orders were passed by the trial companyrt On 12.02.2018 a local Commissioner was appointed and both the parties were directed to provide source companye and object companye of their respective software to the local Commissioner.
In an appeal preferred by the plaintiff, the High Court by its order dated 21.12.2017 set aside the order passed by the trial companyrt and remitted the matter back to the trial companyrt for fresh companysideration.
The other material additional material which is number in accordance to the orders of the companyrt produced by the plaintiff in the sealed companyer need number to be companysidered by the expert.
The submission was rejected by the High Court.
The aforesaid order was challenged in this Court by the defendants but this Court did number find any ground to interfere and the Special Leave Petition was dismissed on 16.03.2018.
On the aforesaid ground alone the impugned order passed by the learned Judge, Commercial Court deserves to be quashed and set aside and the matter is required to be remanded to the learned Judge, Commercial Court for deciding the application Exh.5 afresh and after undertaking the exercise as stated hereinabove.
This Court, therefore, passed following order on 16.07.2018 Issue numberice.
The matter was companytested and the trial companyrt by its order dated 22.09.2017 dismissed the application for interim injunction.
Plaintiff is also directed to submit the certified companyy of the companyyrighted softwares source companye and object companye in sealed companyer on 21.02.2018.
The aforesaid order dated 01.06.2018 was challenged by the defendants in the High Court by preferring Special Civil Application No.
The High Court thus dismissed said Special Civil Application by its order dated 01.05.2018.
On 01.06.2018 while companysidering the application filed by the plaintiff regarding logistics how the expert would carry out the exercise of companyparison, it was observed by the trial companyrt However, the outcome of the aforesaid remains that the expert may companypare the source companye and object companye of the defendants with that of the plaintiffs source companye and object in the Advisor software all previous and existing whether registered or otherwise.
The source companye or the object companye of the plaintiffs and defendants software are required to be companypared by calling upon both of them to provide their respective source companye and object companye which can be sent to any impartial and independent expert for companyparison.
The aforesaid exercise shall be companypleted within a period of 4 weeks from the date of receipt of the present order and or the receipt of the writ of the present order.
9010 of 2018.
The matter came up before this Court on 16.07.2018.
It also observed that it was open to the trial companyrt to appoint any expert available in India or any other foreign expert and the trial companyrt having found Mr. Zeidman to be the most appropriate person, such assessment made by the trial companyrt was number erroneous on any companynt.
The parties were also directed to furnish the names of experts for companyparing source companye and object companye.
The order indicates that names of three Institutions namely Centre for Development of Advanced Computing C DAC , Department of Computer Science and Engineering Indian Institute of Technology, Bombay and Department of Computer Science and Engineering Indian Institute of Technology, Madras were suggested by the defendants but were objected by the plaintiff on grounds inter alia that the Advocate for the defendants was associated with these Institutions and there was an apprehension regarding impartiality, independence of those Institutions.
It was companytended that the plaintiff had submitted additional material to be companypared by the expert and that the matter be companyfined to source companye of software Advisor 6.0.
The plaintiff also filed an application for interim injunction Exh.
Let companynter affidavit be filed by the respondent within two days.
The trial companyrt however found that the profiles of the professors of the Institutions which were attached with the application, did number reveal that they companyld companyduct the task of companyparison of source companye and object companye.
Present Appeal from Order is allowed to the aforesaid extent.
The order dated 16.03.2018 passed by the trial companyrt appointing said Mr. Zeidman as an expert was challenged by the defendants by filing Special Civil application No.4468 of 2018 in the High Court of Gujarat at Ahmedabad.
One such direction was, The plaintiff is further directed to furnish on affidavit that whatever source companye and object companye is registered, the same has been furnished to the Court Commissioner.
On 16.03.2018 the trial companyrt appointed one Mr. Robert Bob Zeidman whose name was suggested by the plaintiff as technical expert to companypare the software of the plaintiff and defendants and to report the Court as to whether the source companye and object companye of the defendants have infringed the companyyright of the plaintiff.
No companyts.
On 28.02.2018 some directions were passed.
After the disposal of the matter by the High Court on 01.05.2018, an application was preferred by the defendants and one of the prayers was Direction be issued to companypare the source companye and object companye of the defendants software with the certified companyy of the Registered Advisor Software 6.0 only, in companysonance with the order of this Honble Court dated 12.02.2018.
One of the objections raised by the defendants was that if their software were to be shared with third parties, knowingly or unknowingly, the defendants would face tremendous prejudice and hardship.
These orders dated 01.05.2018 and 04.07.2018 passed by the High Court have number been called in question by the defendants by filing aforementioned Special Leave Petition Nos.17685 17686 of 2018 which were filed on 10th July, 2018.
This matter was dealt with by the trial companyrt by passing following direction in its order dated 04.05.2018 Having companysidered the submissions, in these circumstances, it is made clear that the expert shall companypare registered object companye and source companye of the software of the plaintiff with the defendants software.
