Dismissed

Diyora Bhanderi Corporation v. Sarine Technologies Ltd.

Gujarat HC1 May 2018SCA/4468/2018

Case brief

AI extract

What is this about?

This Special Civil Application challenged the appointment of a foreign technical expert to compare software code in a copyright infringement suit. The High Court dismissed the petition, finding no merit in interfering with the trial court's order after reviewing the experts' profiles. The court held it unnecessary to examine the constitutional challenge to Section 8 of the Commercial Courts Act, 2

What did the court decide?

The Special Civil Application was dismissed.

Diyora Bhanderi Corporation Vs Sarine Technologies Ltd. — Intellectual Property | Gujarat HC (2018)

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C/SCA/4468/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4468 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY

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and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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DIYORA BHANDERI CORPORATION

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Versus SARINE TECHNOLOGIES LTD

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Appearance:

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MR SN SOPARKAR, SENIOR COUNSEL WITH MR MANAN A SHAH(5412) for the PETITIONER(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9 MR GOPAL JAIN, SENOR COUNSEL WITH MR SANDEEP GROVER, ADVOCATE WITH MR ISHWAR UPNEJA, ADVOCATE WITH MS PANKHURI BHARDWAJ ADVOCATE WITH MR DILIP B RANA(691) for the RESPONDENT(s) No. 1

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for the RESPONDENT (s) No.2,3

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==========================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 01/05/2018

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C/SCA/4468/2018 CAV JUDGMENT

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CAV JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)

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1.This Special Civil Application is filed

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with the prayers, which read as under:

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“(A) YOUR LORDSHIPS may be pleased to admit and allow this petition and be pleased to declare that Section 8 of The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 is ultra vires to the Constitution of India as it curtains/takes away the jurisdiction of Hon'ble High Court under Article 226 and 227 of the Constitution of India and thus the same may be struck down to the extent mentioned above.

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(B) YOUR LORDSHIPS may be pleased to allow this petition and be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 16/03/2018 passed below Exhibit 75, 76 and 85 by Ld. Commercial Court in Commercial Trade Mark Suit No.8/2017, and

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C/SCA/4468/2018 CAV JUDGMENT

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further be pleased to grant the Application Exhibit 76 and 85 filed by the present Petitioners in Commercial Trade Mark Suit No.8/2017(Annexure F and G) in terms of its prayer clause, in the interest of justice;

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(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the further proceedings of Commercial Trade Mark Suit No.8/2017 pending in the Court of Ld. Commercial Court, Vadodara, in the interest of justice;

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(D) YOUR LORDSHIPS may be pleased to grant ad-interim, ex-parte relief in terms of prayer clause (c) above, in the interest of justice;

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(E) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court, in the interest of justice.”

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2.Necessary facts, in brief, for the

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disposal of this Special Civil Application, are
as under:

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Page 3 of 27

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C/SCA/4468/2018 CAV JUDGMENT

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2.1 The petitioners herein are the

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defendants in the suit in Commercial Trade Mark

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Suit No.8 of 2017, pending on the file of the
Commercial Court at Vadodara. The said suit is
filed by the respondent-plaintiff with the
following reliefs:

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“(i) a decree of permanent injunction be passed in favour of the Plaintiff and against the Defendants, their affiliates, subsidiaries, related parties, officers, directors, representatives, agents, distributors, assigns, nominees and customers restraining them from using, distributing, selling, offering for sale any inclusion scanning services that infringe the Plaintiff’s copyright as well as any future machine / device that incorporates the copyrighted software of the Plaintiff and infringes the copyright of the Plaintiff in its Advisor-TM software, for which copyright subsists under common law and also version 6.0 whereof, the code for which also includes programming from previous versions, has been registered in the USA as copyright No.TX 8252522;

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(ii) a decree of mandatory injunction be

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passed directing the Defendants, their affiliates, subsidiaries, related parties, officers, directors, representatives, agents, distributors, assigns, nominees, and customers to:

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(a) deliver to the Plaintiff’s attorneys or its nominated representatives, for the purposes of destruction, all devices, hardware, software, computers, hard disks, pen drives, CDs etc. and all other devices which store the pirated software of the Defendants and which violate the Plaintiffs rights inter alia in its copyright in the Advisor-TM software (all versions), whether registered or subsisting under common law; and

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(b) recall all infringing components/elements, semi-manufactured products, product(s) manufactured which incorporate the Plaintiff’s software and which violate the Plaintiff’s copyright in the Advisor-TM software (all versions), which have been distributed, used and sold by the Defendants at its own costs.

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(iii) an order for redintion of accounts

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of the Defendants in respect of the gross sales and revenue figures for last 5 years qua the infringing / pirated software which has been used, sold and distributed by the Defendants;

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Rs.50,00,00,000/-(Rupees Fifty Crores Only) be passed in favour of the Plaintiff and against the Defendants. The Plaintiff submits that the valuation of damages is in approximate figures and on the complete disclosure of revenues earned by the Defendants in terms of prayer (iii) above, the Plaintiff craves leave to claim further damages and undertake to pay further court fee as may be determined by this Hon’ble Court;

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(v) costs of the suit be awarded to the Plaintiffs;”

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2.2 The respondent-plaintiff is a company
incorporated as per the laws of Israel. It is
the case of the plaintiff that, it has
established its business in Israel and is engaged

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in the business to provide diamond dealers,
merchants, directly or indirectly with the best-

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Page 6 of 27

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C/SCA/4468/2018 CAV JUDGMENT

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in-class equipment and services for the mapping,
processing and trade of diamonds and other
gemstones. It has invented the software (Advisor
TM software), which is most widely used in rough
gemstone planning. The software integrates
internal inclusion scanning information and
geometrical 3D analyses and objective of the said
software is to generate an optimal planning and
polishing plan so that the maximum value can be
derived from the rough stone. The said software
computer programmes are recognized as literary

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works in both the USA and Israel and the
respondent-plaintiff is having valid subsisting
copyright in the said software. Over the years,

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the respondent-plaintiff has established a
formidable brand name for itself in the diamond
industry.

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2.3 The reliefs in the suit are sought,
mainly alleging that, the petitioners-defendants
have violated the copyright of the aforesaid
software.

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Page 7 of 27

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2.4 Pending the suit, the respondent-

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plaintiff filed application under Exh.5, seeking
injunction orders against the petitioners-
defendants. The petitioners-defendants have
filed written statement, denying the various
allegations made against them in the suit. They
also filed reply to the application Exh.5. It was
the case of the petitioners-defendants that the
application filed by the respondent-plaintiff is
baseless and not maintainable, both on law and
facts. The relief sought is totally on figment of
imagination, falsehood and mis-representation and
such application is filed to harass the
petitioners-defendants, by abusing the process of
law so as to eliminate the competition and create
monopolistic scenario with mala-fide and oblique
motive.

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2.5 After hearing both the sides, the learned

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Commercial Court, Vadodara, has rejected the
injunction application Exh.5. Aggrieved by the

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said order rejecting Exh.5 application, the
respondent-plaintiff filed appeal in Appeal From
Order No.310 of 2017 before this Court, which is
disposed of by a Coordinate Bench of this Court
by order dated 21.12.2017. By the aforesaid
order, this Court allowed the Appeal From Order
filed by the respondent-plaintiff and set aside
the order passed by the Commercial Court,
Vadodara, on Exh.5 application and remanded the
matter to the said Court for deciding Exh.5
application afresh, in accordance with law and on
its own merits. The operative portion of the
order dated 21.12.2017 passed in Appeal From
Order No.310 of 2017 reads as under:

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“7.0 In view of the above and for the reasons stated above, present Appeal From Order succeeds. Impugned order passed below Exh.5 application by the learned Judge, Commercial Court, Vadodara in Commercial Trade Mark Suit No.8/2017 is hereby quashed and set aside and the matter is remanded to the learned Judge, Commercial Court, Vadodara for deciding the application Exh.5 afresh in

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accordance with law and on its own merits, however while deciding the application Exh.5, the learned Judge, Commercial Court to call upon the plaintiff and the defendants to provide their respective source code and object code of their respective software to the Court and the Court may send the same to some impartial and independent expert for comparison with the source code and object code of the plaintiff. The aforesaid exercise shall be completed 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. Present Appeal From Order is allowed to the aforesaid extent. No costs.”

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2.6 Against the aforesaid order passed by

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the Coordinate Bench of this Court, the
petitioners herein have carried the matter to

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Hon'ble Supreme Court by way of Special Leave to
Appeal (Civil) No.5772 of 2018. The said Special
Leave petition is dismissed by the Hon'ble
Supreme Court by order dated 16.3.2018.

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2.7In view of the orders passed by this
Court, the source code and object code of both

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the parties are collected by the Commissioner
appointed by the Court.

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2.8 In view of the directions issued by this
Court in the order dated 21.12.2017 to appoint an
impartial and independent expert for comparison
of the source code and object code of the
respondent-plaintiffandthepetitioners-

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defendants, the respondent-plaintiff filed Exh.75
application under section 151 of the Code of

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Civil Procedure, suggesting the names of experts.
In the aforesaid application, the petitioners-
defendants filed reply. The petitioners-
defendants also filed application vide Exh.76,
suggesting the names of technical experts. The
petitioners-defendants also filed additional
application for appointment of experts vide
Exh.85. In the aforesaid applications under
Exhs.75, 76 and 85, the impugned order dated
16.3.2018 is passed by the Commercial Court,
Vadodara, in Commercial Trade Mark Suit No.8 of
2017, by appointing Mr. Robert “Bob” Zeidman as a

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technical expert to compare the software of the
respondent-plaintiffandthepetitioners-

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defendants and to report to the Court as to
whether any copyright of the respondent-plaintiff
is infringed. Aggrieved by the appointment of
such technical expert, this petition is filed.

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2.9 As much as section 8 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 bars jurisdiction to entertain any Civil Revision Application or any petition against any interlocutory order passed by the Commercial Court, the petitioners have also challenged the constitutional validity of the said provision. While challenging the constitutional validity of the said provision, they have also challenged the order dated 16.3.2018 passed by the Commercial Court, Vadodara.

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3.We have heard Mr. S.N.Soparkar, learned

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Senior Counsel appearing with Mr. Manan A. Shah,
learned counsel for the petitioners-defendants

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and Mr. Gopal Jain, learned Senior Counsel
appearing with learned counsels, Mr. Sandeep

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Grover, Mr. Ishwar Upneja with Ms.Pankhuri
Bhardwaj with Mr. Dilip B. Rana for the
respondent-plaintiff.

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4.As much as the learned counsels on both

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sides have advanced the arguments on the validity
of the order dated 16.3.2018 passed by the
Commercial Court, we have heard the learned
counsels and also perused the material on record
and the order dated 16.3.2018. Though the
validity of the provisions of section 8 of the
Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act,
2015 is also challenged, as we do not find any
merit in this petition, so as to interfere with

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the order dated 16.3.2018 passed by the
Commercial Court, Vadodara, we are of the view
that it is not necessary to go into the validity
of the provisions of section 8 of the Commercial

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Courts, Commercial Division and Commercial

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Appellate Division of High Courts Act, 2015, in
this petition.

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5.Learned Senior Counsel, Mr. Soparkar
appearing for the petitioners-defendants has
contended that, though there are technical
experts on the subject available in India itself,
the Commercial Court has appointed Mr. Robert
“Bob” Zeidman of USA as the technical expert to
compare the software of the plaintiff and the
defendants and to report whether the defendants
have violated and infringed the copyright of the
respondent-plaintiff. It is submitted that, in
the application filed by the petitioners-

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defendants, they have suggested the names of
three institutions i.e. the Centre for
Development of Advanced Computing (C-DAC), Pune,
Department of Computer Science and Engineering,
Indian Institute of Technology, Bombay and
Department of Computer Science and Engineering,

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Indian Institute of Technology, Madras. It is
submitted that in spite of naming such top

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institutes of the country, which have name and
fame all over the world, the trial court has
chosen to appoint only Mr. Robert “Bob” Zeidman,

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as suggested by the plaintiff. It is the
submission of learned Senior Counsel, Mr.Soparkar

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that the said order is passed by appointing
overseas person as an expert merely based on the
self-proclaimed profile in inter-net, who is
abroad and not accountable to Indian laws. It is

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the contention of the learned Senior Counsel that
when such experts from various world renowned
institutions are available in India, there is no
reason or justification for appointing Mr.

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Robert “Bob” Zeidman, to make a comparison of

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source code and object code. It is further
submitted that the petitioners-defendants have
already deposited their complete source code with
the trial court, which is largely a trade secret

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developed by the in-house of the Research and
Development of the petitioners-defendants and,

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therefore, in case of any harm by intent or by
default is caused by the expert, who is not

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subjectedtoIndianjurisdiction,the

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petitioners-defendants will be put to great
hardship.

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6.On the other hand, Mr. Gopal Jain,
learned counsel appearing for the respondent-
plaintiff has submitted that this Court has
directed to appoint an expert to compare the
source code and object code of both the companies
and to submit a report on the allegations made by
the respondent-plaintiff that the petitioners-
defendants have violated the copyright of the
respondent-plaintiff in using the software
developed by them. Referring to the provisions

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under section 45 of the Indian Evidence Act,
1872, he has submitted that specially skilled

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persons on the subject only can be said to be an

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expert within the meaning of section 45. He has
submitted that the scope of expert under section
45 of the Indian Evidence Act has been considered

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by the Hon'ble Supreme Court in the judgment in

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the case of State of H.P. vs. Jailal and Others

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reported in (1999)7 Supreme Court Cases 280.
Paragraphs 13 and 17 of the said judgment, which
are relevant for the purpose of disposal of this
Special Civil Application, read as under:

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“13. An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject. Shri P.C. Panwar in his evidence has stated that he passed B.Sc. (Agriculture) Honours from the University of Delhi in 1959; thereafter he did his M.Sc. (Horticulture) in 1967 from Punjab University. He joined the Agricultural Department in the year 1969 as a Research Assistant; he was promoted as Horticulture Development Officer in the year 1973 and at the time of the assessment he was working as District Horticulture Officer, Shimla. He has also stated that in the year 1986 he attended a 3 months' training course on apple technology in the University of Tasmania, Australia. The assessment in the orchards in question were made on different dates in November 1984. He has fairly accepted the suggestion that he had not received any training with respect to

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assessment of apple crop but that has been a part of his job. The witness could not state the number of scab cases in which he had been called upon to make assessment. He has specifically stated in the case against Jai Lal and others that that was his first and last assignment till date as a commission for assessing productivity of an apple orchard.

14. ....

15. ....

16. ....

17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.”

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7.It is contended by learned Senior

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Counsel, Mr. Gopal Jain that Mr. Robert “Bob”
Zeidman is a specially skilled person on the
subject and is an expert on intellectual property
disputes, especially copyright infringement and
trade secret theft cases, as such, it cannot be
said that order passed by the trial court is
illegal. It is submitted that, pursuant to
directions issued by this Court, the respondent-
plaintiff suggested three names and the
petitioners-defendants also suggested names of

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three institutions. It is submitted that
considering the relevant aspects, the trial court
has passed the order appointing Mr.Robert “Bob”
Zeidman and merely because the said expert is not
from India, it cannot be said that such order
passed by the trial court is without any
authority of law and jurisdiction. It is
submitted that, the issue is not relating to
nationality and in view of the specific claim
made by the respondent-plaintiff, the said order

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is passed, which is in conformity with the law.
It is submitted that the trial court has
appointed Mr. Robert “Bob” Zeidman as an expert
and expert is a person, who has special knowledge
and skill in the field and study. In this
connection, learned Senior Counsel, Mr. Gopal
Jain has placed reliance on the judgment of the
Hon'ble Supreme Court in the case of State of
H.P. vs. Jailal and Others reported in (1999)7
Supreme Court Cases 280. Further, it is submitted
that, the very objective of the Commercial Courts
Act is for resolution of commercial disputes in

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an expeditious manner, in spite of the same,
contrary to objectives, such disputes are
prolonged by raising untenable objections.

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8.Having heard the learned Senior Counsels
on both sides, we have perused the impugned order
and other material placed on record.

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9. When the application filed by the

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respondent-plaintiff for injunction is refused by

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the trial court , matter was carried by the respondent-plaintiff by way of appeal in Appeal From Order No.310 of 2017. This Court, vide order dated 21.12.2017, has allowed the appeal and remanded the matter to the Commercial Court, Vadodara for deciding the application below Exh.5 afresh, in accordance with law and on its own merits. In the said order, further directions are issued to the trial court to call upon the plaintiff and the defendants to provide their respective source code and object code of their respective software to the Court and the Court

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may send the same to some impartial and
independent expert for comparison of the source

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code and object code. Further, a time frame of
four weeks was fixed to complete such exercise.
In view of such order passed by this Court, the
source code and object code of the parties are
also collected by the Commissioner appointed by
the Court and the respondent-plaintiff has filed

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Exh.75 application, suggesting the names of the
experts. The reply affidavit is filed to such

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Page 21 of 27

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application. The petitioners-defendants also
filed application below Exh.76 and additional
application below Exh.85 for appointment of

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expert.

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10. In the application filed by the

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respondent-plaintiff, it suggested the name of
Mr. Robert “Bob” Zeidman, stating that, he is a
highly qualified technical expert and has wide
experience in the field of comparison of source
code and object code. It is also the case of the
respondent-plaintiff that he has published
several books and articles on the subject and is
a very competent person. The second name
suggested by the respondent-plaintiff is of
Mr.Robert Dezmelyk. It is pleaded that, he is
also a technical expert and his profile is
attached with the application. The third name
suggested by the respondent-plaintiff is of
Technisights and the plaintiff has placed on
record profile of the said company and other
experts.

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C/SCA/4468/2018 CAV JUDGMENT

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11. Whereas the petitioners-defendants have

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suggested the names of three institutions of
repute i.e. the Centre for Development of
Advanced Computing (C-DAC), Pune, Department of
Computer Science and Engineering, Indian
Institute of Technology, Bombay and Department of
Computer Science and Engineering, Indian
Institute of Technology, Madras. It is the case
of the plaintiff that the institutes, which are
suggested by the defendants, are related one way
or the other to the firms of the petitioners'
counsels. The plaintiff has apprehended
impartiality and independence of the said
institutions. Merely because such an apprehension
is expressed by the respondent-plaintiff, the
same is no ground to doubt about impartiality and
independenceofsuchinstitutions.The

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institutions suggested by the petitioners-
defendants are renowned institutions not only in

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India but abroad also. At the same time, it is to
be noticed that the defendants have suggested the

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profiles of Professors of Indian Institute of
Technology, Bombay, Indian Institute of

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Technology, Madras and Centre for Development of
Advanced Computing (C-DAC), Pune. The trial court
has considered the profiles of the Professors
vis-a-vis the profiles of names suggested by the
respondent-plaintiff and found that the profiles
of Professors suggested by the petitioners-
defendants are engaged in research in computer
science, as such, such persons cannot be treated
as experts to compare the source code and object

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code. Looking at the profiles of the three
experts suggested by the respondent-plaintiff,
the trial court has considered the name of Mr.

¶174

Robert “Bob” Zeidman and appointed him as an
expert to submit the report on the subject, by a
comparison of the source code and object code of
both the companies. Merely because such a person
appointed is from abroad is no ground to
interfere with the order passed by the Commercial

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Court. The respondent-plaintiff is an Israel
based company and in view of its apprehensions

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expressed and in compliance of directions issued
by this Court, it is open for the Trial Court,
either to appoint an expert available in India or

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any other foreign expert. Having regard to the
material placed on record and the profiles

¶180

suggested to the Court, the trial court has
assigned valid reasons for accepting the
suggestion for appointment of Mr. Robert “Bob”
Zeidman as an expert. As rightly argued by
learned Senior Counsel, Mr. Gopal Jain, anybody
cannot be termed as an expert. Here is a case
where we need an expert on the subject for
comparison of the source code and object code. It
also cannot be said that there are no such

¶181

experts in India, but at the same time, having
regard to the material placed on record in the
case on hand, the order is passed by the trial
court, by assigning the reasons for choosing one
of the names suggested by the respondent-

¶182

plaintiff, as such, it cannot be said that trial
court has committed any error to interfere with
the same.

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12. The learned Senior Counsel, Mr. Soparkar
appearing for the appellants, has submitted that,
as the software of the petitioner Company is
developed in their Research and Development, if
the same is shared with third parties, knowingly
or unknowingly, the petitioners-defendants would

¶186

be at great risk and face hardship. In such
eventuality, there are remedies available in law
to proceed against such expert in the event of
any intentional or unintentional sharing of such
trade secrets to third parties but, the same is
no ground to interfere with the impugned order,
at this stage.

¶187

13. For the aforesaid reasons, we do not
find any merit in this petition, so as to
interfere with the impugned order. As we are
satisfied on merits that the order dated

¶188

16.3.2018 passed by the Commercial Court,

¶189

Vadodara, in Commercial Trade Mark Suit No.8 of
2017 does not call for any interference, as such,

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it is not necessary to deal with other

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contentions about maintainability of this
petition, challenging the order of the Commercial
Court, in exercise of power under Article 226 of

¶194

the Constitution of India. Equally, there is no
need to consider the constitutional validity of
the provision of section 8 of the Commercial
Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015, in
this case. It is left open to consider such issue
in appropriate case.

¶195

14. For the aforesaid reasons, this Special

¶196

Civil Application is required to be dismissed and
is accordingly dismissed. No order as to costs.

¶197

(R.SUBHASH REDDY, CJ)

¶198

(VIPUL M. PANCHOLI, J)

¶199

RADHAKRISHNAN K.V.

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Page 27 of 27

Diyora Bhanderi Corporation v. Sarine Technologies Ltd.

Case brief

What is this about?

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Diyora Bhanderi Corporation v. Sarine Technologies Ltd.

Case brief

What is this about?

What did the court decide?

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