MICROSOFT CORPORATION & ANR v. BALBIR KHERA & ORS

2. The application is disposed of CSrOS^ 857/2013 & LA. No.7602/2013 (u/O 39 R-1 & 2 CPC) I 3. The two plaintiffs have sued for injunction restraining the defendants i 1 from using pirated/unlicensed software programs of the plaintiffs and for I other ancillaiy reliefs. I i 4. It is the case of the plaintiffs that though the defendant No.2 Maxval ^ Technologies P^'t. Ltd. has about 55 licenses ofMicrosoft Ofiice 2010 and f ' 58 licenses of Microsoft Windows 7 Professional but the investigations of the plaintiffs have revealed the defendants to be using the said licenses on 350 computer systems.

5. Issue summons of the suit and notice of the application to the defendants by all modes including dasti returnable on 25*'^ September, 2013. CS(OS) 857/2013 Page 1 of[4] 2013:DHC:6733

6. The plaintiffs onthebasis of documents filed, have made outaprima facie case. The ingredients ofbalance ofconvenience and uTepai-able injmy ai-e implicit, considering the nature of grievance. It is the case of the plaintiffs that the defendants have been evading the audit sought by the plaintiffs and the only reason therefor would beto evade detection ofpiracy.

7. Accordingly, till the next date of hearing, the defendants are restrained fiom, directly or induectly, using for any computer related activity or otherwise in any manner any piiated, counterfeit, unlicensed software of plaintiffs in conti'avention of End-User Licence Agreement or infringing the copyright ofthe plaintiffs. LA. No.7603/2013 (u/O 26 R-9 & 10 r/w O 39 R-7 CPC)

8. The plaintiffs seek appointment of Couit Commissioners to visit the offices of the defendants and verify the uses of unhcensed softwaie programsof the plaintiffsby the defendants.

9. The Division Bench of this Court in Autodesk Inc. Vs. A.V.T. Shankardass 2008 (37) PTC (Del.) has held that in cases of such nature, unless such a commission is issued the proof would disappeai\

10. Accordingly, the following Court Commissioners are appointed: Commissioner

(i) Mr. Ai-anyak Pathak, Adv

(ii) Ms. Nidhi Raman, Adv

Mob. 9891088658 CS(OS) S[5] 7/2013 Premises T-251, ITC, 6"' Floor, CBD Belapur Station Complex, CBD, Belapur, Navi Mumbai-

400614. B-003-004, Platfonn Level, T' Floor, Tower No. 10, ITC, Belapur Station Complex, CBD Belapur, Navi-Mumbai- Page 2 of[4] I to visit the premises ofthe defendants shown agamst theii" respective names and to inspect the Hard Disks of the computers and compact discs and any other storage/replicating media found in the said premises with the help oftechnical experts and representatives ofthe plaintiffs and to prepai'e audit reports, license summaries and inventories of the same and to deteiinine if they contain pirate/counteifeit/unlicensed versions of the plaintiffs' software programs and to seize and seal the computers CPUs, haid disks, compact discs and any other storage/replicating media as found to contain unlicensed/pirated/counterfeit versions of any of the plaintiffs software programs and to entixist the seized goods on superdari if any offered by the defendants.

11. It is fuither directed that theCommissioners with the assistance of the representatives ofthe plaintiffs shall be entitled to use audit tool known as 'Microsoft E&Y Tool' for the said puipose.

12. The defendants are dii'ected to render necessary co-operation to the Coimnissioners and to provide the password/particulars of any computer system, ifrequired.

13. The Coimnissioners shall be entitled to seek poHce assistance, if so required and the Station House Officer (SHO) of the concemed Police Station is directed to upon being so approached by the Commissioner, render necessary assistance for execution ofthe commission.

14. The commission beexecuted within two weeks from today, assought.