In a software copyright dispute, the Court declined to interfere with directions for expert comparison of source and object codes covering registered and unregistered versions. It held the Article 227 petition maintainable but dismissed it on merits, leaving the statutory validity challenge open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/9010/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9010 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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DIYORABHANDERI CORPORATION
Versus
SARINE TECHNOLOGIES LTD
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Appearance:
MR SAURABH SOPARKAR, SENIOR ADVOCATE 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 for the RESPONDENT(s) No. 3
MR NEERAJ MALHOTRA, SENIOR ADVOCATE WITH MR SANDEEP GROVER, MR ISHWAR UPNEJA AND MR DILIP B RANA(691), ADVOCATES for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 04/07/2018 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The petitioners – original defendants have filed
the present petition under Articles 226 and 227 of
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the Constitution of India wherein the petitioners
have challenged the order dated 01.06.2018 passed by
the learned Judge, Commercial Court, Vadodara, in
Commercial Trademark Suit No.8 of 2017. The
petitioners have also challenged the validity and
vires of Section 8 of the Commercial Courts,
Commercial Division and Commercial Appellate Division
of High Courts Act, 2015 (“the Act” for short).
2.The factual matrix of the present petition is as
under:
2.1The present respondent No.1 – original plaintiff
has filed the suit being Commercial Trademark Suit
No.8 of 2017 pending on the file of the Commercial
Court at Vadodara, in which, it is stated that the
plaintiff is a Company incorporated as per the laws
of Israel. It has established its business in Israel
and is engaged in the business of providing
dealers/merchants either directly or indirectly with
the best-in-class equipment and services for the
mapping, processing and trading of diamonds and other
gemstones. It has invented the “AdvisorTM” software
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which is the world’s most widely used rough gemstone
planning software. The said software integrates
internal inclusion scanning information and
geometrical 3D analysis and object of the said
software is to generate an optimal planning and
polishing plan so that maximum value can be derived
from the rough stone. The said software computer
programmes are recognized as literary works in both
the USA and Israel and the plaintiff is having valid
subsisting copyright in the said software. The suit
is filed for permanent and mandatory injunction,
rendition of accounts, damages and for further
directions under the provisions of the Copyright Act,
1967. The plaintiff has prayed for the following
reliefs in the said suit:
“(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
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copyrighted software of the Plaintiff and infringes the copyright of the Plaintiff in its AdvisorTM 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; (ii) a decree of mandatory injunction be passed directing the Defendants, their affiliates, subsidiaries, related parties, officers, directors, representatives, agents, distributors, assigns, nominees, and customers to:
(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 AdvisorTM software (all versions), whether registered or subsisting under common law; and
(b) recall all infringing components/elements, semimanufactured
products, product(s) manufactured which incorporate the Plaintiff’s software and which violate the Plaintiff’s copyright in
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the AdvisorTM software (all versions), which have been distributed, used and sold by the Defendants at its own costs.
(iii) an order for rendition of accounts 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;
(iv) a decree of damages of 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;
(v) costs of the suit be awarded to the Plaintiffs;”
2.2The plaintiff – respondent No.1 filed Exh.5
application seeking interim injunction. The
petitioners – original defendants have filed written
statement denying various allegations made against
them in the suit. The reply to Exh.5 application was
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also submitted by the defendants. After hearing both
the sides, the Commercial Court, Vadodara, rejected
the injunction application Exh.5. Aggrieved by the
said order, the plaintiff filed Appeal from Order
No.310 of 2017 before this Court which has been
disposed of by this Court vide order dated
21.12.2017. This Court allowed the appeal filed by
the plaintiff and set aside the order passed by the
Commercial Court and directed to decide Exh.5
application afresh, in accordance with law and on its
own merits. Against the said order, the petitioners –
original defendants filed Special Leave to Appeal (C)
No.5772 of 2018 before the Hon’ble Supreme Court. The
Hon’ble Supreme Court dismissed the said Special
Leave to Appeal vide order dated 16.03.2018.
2.3Thereafter, various applications were filed by
the plaintiff as well as the defendants before the
Commercial Court. The plaintiff filed application
Exh.88 whereas the defendants filed application
Exh.98. The learned Judge, Commercial Court,
Vadodara, by the impugned order dated 01.06.2018
passed below Exhs.88 and 98 disposed of both the
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applications and issued certain directions.
2.4Being aggrieved and dissatisfied with the same,
the petitioners – original defendants have filed the
present petition challenging the said order passed by
the learned Judge, Commercial Court, Vadodara. The
petitioners have also challenged the validity and
vires of Section 8 of the Act.
3.Heard learned Senior Advocate Mr.S.N. Soparkar
with learned advocate Mr.Manan A. Shah for the
petitioners and learned Senior Advocate Mr.Neeraj
Malhotra with learned advocates Mr.Sandeep Grover,
Mr.Ishwar Upneja and Mr.Dilip B. Rana for respondent
No.1.
4.Learned Senior Advocate Mr.Soparkar appearing
for the petitioners – original defendants assailed
the impugned order passed by the learned Judge,
Commercial Court, mainly on the ground that in the
impugned order, learned Judge has given direction
contrary to the orders dated 12.02.2018, 21.02.2018,
28.02.2018 and 04.05.2018 passed by his Predecessor.
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It is submitted that the earlier orders passed by the
Predecessor of the present learned Judge of
Commercial Court are in complete compliance of the
order dated 22.12.2017 passed by this Court in Appeal
From Order No.310 of 2017.
4.1 Learned Senior Advocate referred the avermentsmade in application Exh.5 as well as the reliefs
prayed for in the application Exh.5 and submitted
that respondent No.1 – original plaintiff has claimed
the ownership in copyright in the software Advisor
under the common laws and statutory rights as
registered copyright work in Advisor Version 6.0.
Thereafter, the learned Senior Advocate referred
Paragraph-4.2 of the order dated 21.12.2017 passed by
this Court in Appeal From Order No.310 of 2017 and
contended that this Court directed vide the said
order dated 21.12.2017 in Paragraph-7 that “...the
matter is remanded to the learned Judge, Commercial
Court, Vadodara for deciding the application Exh.5
afresh in accordance with law and on its own merits,
however, while deciding the application Exh.5, the
learned Judge, Commercial Court to call upon the
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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.” At this stage, it is
submitted that the Commercial Court, thereafter,
passed an order on 12.02.2018 below Exh.71 and in
Paragraph-12 directed the Court Commissioner to
furnish the source code and object code of the
defendants’ software “Work Manager” in a sealed cover
on 21.02.2018. The plaintiff was also directed to
submit the certified copy of the copyrighted
software’s source code and object code in a sealed
cover on 21.02.2018.
4.2Learned Senior Advocate thereafter referred the
order dated 28.02.2018 passed below Exh.78 by the
learned Judge, Commercial Court and, more
particularly, referred Sub-Paragraph-3 of Paragraph-
6, wherein it has been observed that the plaintiff
was directed to furnish on affidavit that whatever
source code and object code is registered, the same
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has been furnished to the Court Commissioner. It is
further pointed out by the learned Senior Advocate
from the order dated 04.05.2018 passed by the learned
Judge, Commercial Court, below Exh.92 that in
Paragraph-4 of the said order, it has been
specifically observed that “Having considered the
submissions, in these circumstances, it is made clear
that the expert shall compare registered object code
and source code of the software of the plaintiff with
thedefendants’software.Theother
material/additional material (which is not in
accordance to the orders of the court) produced by
the plaintiff in the sealed cover need not to be
considered by the expert. It is made clear that this
Court has passed the orders for comparison of the
source code and object code in respect of registered
version of the plaintiff. The orders dated 12.02.2018
and 28.02.2018 passed by this Court and the order
dated 21.10.2017 passed by the Hon’ble High Court be
complied with in letter and spirit. It is again made
clear by the court that at the time of deciding the
logistic for comparison of source and object code,
the Court will decide that what material is required
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to be sent for comparison in compliance of the
orders.”
Learned Senior Advocate, at this stage, would
contend that all the aforesaid orders passed by
the Predecessor, whereby the plaintiff was
directed to submit the certified copy of its
copyright work for comparison and to file an
affidavit that whatever is submitted is a
registered work, have been overruled by the
learned Judge, Commercial Court, in the impugned
order by giving direction that the expert may
compare the source code and object code of the
defendants with that of the plaintiff’s source
code and object code in the Advisor software
(all previous and existing) whether registered
or otherwise. Thus, the impugned order is
contrary to the directions issued by the
Predecessor in four different orders and,
therefore, this Court may quash and set aside
the same.
4.3 Learned Senior Advocate Mr.Soparkar submits thatPage 11 of 33
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subject of the application Exh.98 was only on the
logistic arrangements and direction as to how in
Indian scenario the Literary work needs to be
compared as prayed in Paragraph-7 (d) & (e) and the
modus operandi on the arrangement to facilitate
comparison and also, which documents need to be sent
in view of additional material submitted by the
plaintiff. Thus, through the logistic application, it
was only to be decided that in terms of additional
material being supplied by respondent No.1 –
plaintiff in terms of earlier orders, in fact in view
of non-compliance of earlier orders by respondent
No.1 - plaintiff, as to submission of the source
code, what all need to go for comparison in
compliance of the earlier orders and issue directions
thereto on the logistics as to how the expert will
collect material, how the comparison to be carried
out and how the report is to be submitted among other
such issues. However, while disposing of the logistic
arrangement as suggested by both the parties, the
learned Judge, Commercial Court re-adjudicated the
settled issues and, therefore, the impugned order be
set aside.
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4.4At this stage, learned Senior Advocate appearing
for the petitioners – original defendants contended
that by the plaintiff’s own claim made after testing
and securing the defendants’ source code, in a mail
sent to the expert in Paragraph-5 states that “It is
also an undisputed fact that the files generated
using Defendants’ software cannot be opened in
Advisor Version 6.0, but can be opened only in
Advisor Versions 4.7 and 5.3.” These facts have also
been stated by the technical expert and the same is
clear from the report of the Court Commissioner
placed at Exh.89. Thus, respondent No.1 – plaintiff
came to know about the same only on 17.03.2018 when
the Court Commissioner and Expert from respondent
No.1 – plaintiff came to the premises of the
petitioners – defendants to secure the source code of
the petitioners so as to place before the Court for
comparison. It is submitted that the Advisor Version
6.0 is only registered and other two versions are not
registered. In fact, the plaintiff has not filed
certified copy of the registered work as directed by
the Commercial Court in its order dated 12.02.2018.
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4.5Learned Senior Advocate Mr.Soparkar, therefore,
urged that the impugned order passed by the learned
Judge, Commercial Court, be quashed and set aside.
5.On the other hand, learned Senior Advocate
Mr.Neeraj Malhotra appearing for respondent No.1 –
original plaintiff has supported the reasoning
recorded by the learned Judge, Commercial Court,
Vadodara, in the impugned order and submitted that
the petitioners – original defendants had sought
identical relief in their application Exh.91. The
learned Trial Court disposed of the said application
with the consent of the learned counsel appearing for
the parties by order dated 04.05.2018 by observing
that in view of the consensus at bar, the application
is disposed of with a direction that the defendants
are at liberty to raise all these points at the time
of arguing the application Exh.5 and its all the
contentions raised in the application are kept open
to be considered and agitated at the time of hearing
of the application Exh.5. Thus, in view of the said
order, it is not open for the petitioners –
defendants to raise the same issue. At this stage,
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learned Senior Advocate appearing for respondent No.1
– original plaintiff referred various averments made
in the plaint and the reliefs prayed for in the suit
and, thereafter, contended that the plaint is not
confined to the protection of infringement of only
registered version of the “AdvisorTM” software, but
the plaintiff has sought protection against the
infringement of versions of its “AdvisorTM” software.
It is contended that by virtue of India and Israel
being signatories to the ‘Berne’ convention, the
plaintiff is entitled to protect infringement of its
copyright in “AdvisorTM” software (all versions
thereof), irrespective of whether or not the same is
registered with any authority, as stated and
explained in the plaint. At this stage, learned
Senior Advocate referred and placed reliance upon the
averments made in Paragraphs-8, 19, 30, 39, 42, 44,
45 and the prayer clause of the plaint. He also
placed reliance upon the averments made in
application Exh.5.
5.1Learned Senior Advocate for respondent No.1 –
plaintiff thereafter submits that in the written
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statement, the petitioners – original defendants have
expressly stated that they are using Advisor software
legitimately as per the End User License Agreement
for the same. However, respondent No.1 – original
plaintiff categorically denies that there is any
licence provided by respondent No.1 – original
plaintiff in favour of the petitioners – defendants
in respect of any version of Advisor software.
However, the admission of the petitioners –
defendants in the written statement estops the
petitioners to take contradictory stand. Further,
till date, the petitioners – defendants have not
produced the licence issued by respondent No.1 –
original plaintiff.
5.2 Learned Senior Advocate Mr.Malhotra wouldcontend that the exercise of comparison and analysis
of the source code and object code of the plaintiff’s
software and defendants’ purported software is being
carried out in pursuance to and in compliance of the
order dated 21.12.2017 passed by the Division Bench
of this Court in Appeal From Order No.310 of 2017.
Learned Senior Advocate referred Paragraphs-6 and 6.1
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of the order dated 21.12.2017 passed by the Division
Bench of this Court in the aforesaid Appeal From
Order and contended that the said order clearly
records that the petitioners – original defendants
were found to be using Advisor software Version 4.7.
Thus, the petitioners – defendants are estopped from
contending that the comparison has to be undertaken
only for the registered software of respondent No.1 –
plaintiff. It is submitted that the aforesaid order
has attained finality as the Hon’ble Supreme Court
has dismissed the Special Leave to Appeal filed by
the petitioners.
5.3Learned Senior Advocate Mr.Malhotra further
submits that while disposing of the application
Exh.92 by order dated 04.05.2018, the Trial Court has
specifically observed in Paragraph-7 that the pleas
of both the parties are kept open to be agitated at
appropriate time. Thus, the said order clearly
stipulates that at the time of deciding the logistic
for comparison and analysis of source code and object
code, the Trial Court will decide as to what material
is required to be sent for such comparison and
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analysis. Thus, the Trial Court has not committed any
error while issuing directions in the impugned order.
5.4Learned Senior Advocate Mr.Malhotra thereafter
submitted that while exercising powers under Article
227 of the Constitution of India by the High Court,
scope of judicial review is very limited and the
orders passed by the subordinate Courts can be
interfered with only in certain circumstances.
Learned Senior Advocate has placed reliance upon the
decision rendered in the case of Shalini Shyam
Shetty and Anr. Vs. Rajendra Shankar Patil reported
in (2010) 8 SCC 329, in support of this contention.
5.5Learned Senior Advocate Mr.Malhotra appearing
for respondent No.1 – plaintiff, therefore, urged
that the learned Judge, Commercial Court, has not
committed any error while passing the impugned order
and, therefore, this Court may not exercise the
powers under Article 227 of the Constitution of India
and thereby dismiss the present petition.
6. Having heard learned counsel appearing for the
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parties and having gone through the material produced
on record, it emerges that respondent No.1 –
plaintiff has filed the suit being Commercial
Trademark Suit No.8 of 2017 which is pending before
the Commercial Court at Vadodara. The said suit has
been filed alleging that the petitioners – defendants
have violated the copyright of the “AdvisorTM”
software invented by the plaintiff. The suit is filed
for permanent and mandatory injunction, rendition of
accounts, damages and for further directions under
the provisions of the Copyright Act, 1957. It is
specifically averred in the plaint that “AdvisorTM”
software (all versions) combines three-dimensional
modeling and advanced mathematical algorithms which
aid the planning of rough gemstones. The plaintiff
has invested a significant amount of time, effort and
resources in research and development in order to
create the said “AdvisorTM” software. The copyright
in this software is being infringed by the
defendants. Even in the reliefs prayed for in the
plaint, there is a specific reference with regard to
the “AdvisorTM” software (all versions) whether
registered or subsisting under common law.
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7.It is further revealed that when the application
Exh.5 for injunction filed by the respondent No.1 -
plaintiff was rejected, it had filed Appeal From
Order No.310 of 2017 before this Court. The Division
Bench of this Court disposed of the said appeal vide
order dated 21.12.2017. In the said order, it has
been observed by the Division bench that the
defendants are ready to provide the source code and
object code to the Court and the Court may send the
same to any impartial and independent expert for
comparison of the source code and object code of the
plaintiff. It is further observed that when the local
Commissioner was appointed, the local Commissioner
pointed out that the defendants were using Advisor
software 4.7. However, the defendants claimed that
they were having a valid user license. However, such
a valid user license is not forthcoming. Thereafter,
it has been observed that the source code or object
code of the plaintiff and the defendants’ software
are required to be compared by calling upon both of
them to provide their respective source code and
object code, which can be sent to any impartial and
independent expert for comparison. After observing
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the same, this Court quashed and set aside the order
passed by the Trial Court on application Exh.5 and
the matter was remanded back to the Trial Court for
considering the same afresh in accordance with law
and on its own merits.
8.The petitioners have placed reliance upon the
orders dated 12.02.2018 passed below Exh.71, order
dated 21.02.2018 passed below Exh.74, order dated
28.02.2018 passed below Exh.78 and order dated
04.05.2018 passed below Exh.92, in support of their
contention that in all the aforesaid orders, the
Predecessor of the present learned Judge, Commercial
Court, has considered about the copyrighted
software’s source code and object code of the
plaintiff. The copyrighted software is 6.0 and not
4.7 and 5.3. In spite of that the learned Judge,
Commercial Court, in the impugned order observed that
the expert may compare the source code and object
code of the defendants with that of the plaintiff’s
source code and object code in the “AdvisorTM”
software (all previous and existing) whether
registered or otherwise and, therefore, such
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direction is contrary to the earlier orders passed by
the Predecessor. However, with regard to the said
contention, it is required to be observed that the
Division Bench of this Court in the order dated
21.12.2017 specifically observed that when the local
Commissioner was appointed, he pointed out that the
defendants were using Advisor software 4.7, but they
were having a valid user license. It was also
observed that the source code and object code of the
plaintiff and defendants are required to be compared
by calling upon both of them to provide their
respective source code and object code, which can be
sent to any impartial and independent expert for
comparison. The said order has attained finality and,
therefore, even the Trial Court, while passing the
order dated 04.05.2018 below Exh.92, recorded that
the expert shall compare registered object code and
source code of the software of the plaintiff with
that of the defendants’ software. It is also recorded
that the order dated 21.12.2017 passed by the High
Court be complied with in letter and spirit.
Thereafter, in last paragraph, it has been observed
that the pleas of both the parties are kept open to
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be agitated at appropriate time. While passing the
impugned order, the learned Judge, Commercial Court,
has considered all the aforesaid aspects as well as
considered the order dated 21.12.2017 passed by the
Division Bench of this Court in Appeal From Order
No.310 of 2017 as well as order dated 01.05.2018
passed in Special Civil Application No.4468 of 2018
and, thereafter, observed that each order is required
to be read in its entirety and not in part and
piecemeal because, in the subsequent paragraph of the
order below Exh.92, the parties to the suit have been
directed to comply with the orders dated 12.02.2018,
28.02.2018 of the Commercial Court as well as the
order dated 21.12.2017 passed by this Court while
reserving and leaving the parties to raise and
agitate their submissions so as to decide the
logistics for comparison of source code and object
code sought to be sent in compliance of the order. It
is, thereafter, specifically observed by the learned
Judge, Commercial Court, in Paragraph-19 of the
impugned order that “it is explicitly made clear not
only from aforesaid order passed by my Ld.
Predecessor but also made it clear that the entire
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exercise of comparison and analysis of source code
and object code of the plaintiff’s software and
defendants’ software is required to be carried out
pursuant to and in compliance of the afore-dated
orders mentioned hereinabove passed below Exh.92 and
particularly the order dated 21.12.2017 passed by the
Division Bench of the Hon’ble High Court of Gujarat
in Appeal From Order No.310 of 2017 preferred by the
plaintiff wherein, the Hon’ble High Court has been
pleased to order to compare the source code and
object code of the plaintiff’s software (instead of
registered) source code and object code of the
plaintiff’s software. Thus the order passed below
Exh.92 has been in compliance of the order passed by
the Hon’ble High Court of Gujarat in Appeal From
Order No.310 of 2017....”
9.At this stage, we would like to refer the
decision rendered by the Hon’ble Supreme Court in the
case of Shalini Shyam Shetty and Anr. Vs. Rajendra
Shankar Patil (supra), upon which the reliance is
placed by the learned Senior Advocate for respondent
No.1 – plaintiff. In the said decision, the Hon’ble
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Supreme Court has laid down the principles for
exercise of powers under Article 227 of the
Constitution of India by the High Court in Paragraph-
62 as under:
“62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act
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as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and
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(f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under
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Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
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(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.”
10.From the aforesaid decision, it can be said that
the High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor can
it, in exercise of this power, act as a Court of
appeal over the orders of Court or tribunal
subordinate to it. The High Court, in exercise of its
jurisdiction of superintendence, can interfere in
order only to keep the tribunals and Courts
subordinate to it, within the bounds of their
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authority. The High Court can interfere in exercise
of its power of superintendence when there has been a
patent perversity in the orders of tribunals and
Courts subordinate to it or where there has been a
gross and manifest failure of justice or the basic
principles of natural justice have been flouted. The
High Court cannot interfere to correct mere errors of
law or fact or just because another view than the one
taken by the tribunals or Courts subordinate to it,
is a possible view. In other words, the jurisdiction
has to be exercised very sparingly.
11.Keeping in view the aforesaid decision rendered
by the Hon’ble Supreme Court, we have considered the
reasoning recorded by the learned Judge, Commercial
Court, in the impugned order. In view of the
aforesaid facts and circumstances of the case as
discussed hereinabove, we are of the view that this
is not a fit case to exercise powers under Article
227 of the Constitution of India.
12.At this stage, we would like to refer the
decision rendered by the Division Bench of this Court
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on 07.05.2018 in Special Civil Application No.737 of
2018, rendered in the case of State of Gujarat Vs.
Union of India, wherein the Co-ordinate Bench has
considered the aspect of maintainability of the
petition under Article 227 of the Constitution of
India against the interlocutory order passed by the
subordinate Court/ Commercial Court. The Co-ordinate
Bench has observed in Paragraphs-11 and 11.2 of the
said judgment as under:
“ 11. Now so far as the submission on behalf of the respondents that if against the interlocutory order passed by the subordinate Court / Commercial Court, the writ petition under Article 227 of the Constitution is held to be entertainable, in that case, the same shall be against the object and purpose of establishment of Commercial Courts, i.e. speedy disposal of commercial disputes and it would open the flood-gates of such litigation is concerned, such submission has not been accepted by the Hon'ble supreme Court in the case of Coal India Ltd. And Others v. Saroj Kumar Mishra reported in (2007)9 SCC 625; Zee Telefilms Ltd. And Another v. Union of India And Others reported in (2005)4 SCC 649; Guruvayoor Devaswom Managing Committee And Another v. C.K.Rajan And Others reported in (2003)7 SCC 546, and K. Kannadasan v. Ajoy Khose And Others (supra).
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11.1 xxx xxx xxx
11.2 In the case of Coal India Ltd. And Others v. Saroj Kumar Mishra (supra), the Hon'ble Supreme Court has observed that only because there is a possibility of flood-gate litigation, a valuable right of a citizen cannot be permitted to be taken away. It is further observed by the Hon'ble Supreme Court that such argument appears to be an argument desperation. In Paragraph-19, the Hon'ble Supreme Court has observed and held as under:
“19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.”
12.1Thus, in view of the aforesaid decision
rendered by the Co-ordinate Bench of this Court, the
petition under Article 227 of the Constitution of
India is maintainable against the interlocutory order
passed by the subordinate Court/ Commercial Court.
13.At this stage, it is required to be noted that
the learned counsel appearing for the parties have
advanced their arguments on the validity of the
impugned order dated 01.06.2018 passed by the learned
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Judge, Commercial Court and we have heard the learned
counsel and perused the material on record as well as
the order dated 01.06.2018. Learned advocates have
not made any submissions with regard to the validity
of the provisions of Section 8 of the Commercial
Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015. Therefore, it is
not necessary to go into the validity of the
provisions of the aforesaid Section in the present
petition. However, it is kept open to consider such
issue in appropriate case.
14.In view of the aforesaid reasons, we do not find
any merit in the petition so as to interfere with the
impugned order dated 01.06.2018 passed by the learned
Judge, Commercial Court, Vadodara, below applications
Exhs.88 and 98. Accordingly, the petition is
dismissed. No order as to costs.
(R.SUBHASH REDDY, CJ)
(VIPUL M. PANCHOLI, J)
piyush
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2 issues framed by the court
Is a petition under Article 227 maintainable against an interlocutory order of a Commercial Court?
Did the direction for expert comparison of registered and unregistered software versions warrant interference under Article 227?
Colour shows how this judgement treated each authority
Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar PatilApplied¶155
(2010) 8 SCC 329 · Who else cites this
State of Gujarat Vs. Union of IndiaRelied on¶197
Special Civil Application No.737 of 2018
1 provisions across 1 enactments
DIYORABHANDERI CORPORATION
SARINE TECHNOLOGIES LTD
R.SUBHASH REDDY
VIPUL M. PANCHOLI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court