1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO.1263 OF 2009 IN SUIT NO. 3094 OF 2005 Indiana Gratings Pvt. Ltd. & Anr. .. Plaintiffs Vs. Koyna Power Ltd. & Ors. .. Defendants Dr. Virendra Tulzapurkar Sr. Counsel, Mr. F. D’Vitre Sr. Counsel a/w Mr. Amit Jamsandekar a/w Mr. Shriraj Dhruv a/w Ms. Snehal Karkera i/b M/s. Dhru & Co. for the Plaintiffs. Mr. T. Deshmukh for Defendant Nos. 1 to 3 & 8 to 12. Mr. L. M. Acharya for the Defendant Nos. 13 to 17. Mr. Birendra Saraf a/w Mr. Mukul Taly a/w Mr. Rakesh Misar i/b S. Mahomedbhai & Co. for Defendant No.24. CORAM : MRS. ROSHAN DALVI, J. DATE : 8th July, 2010. P.C. 1. The Plaintiffs claim copyright over certain drawings. The Plaintiffs’ case of copyright has been considered in an earlier order passed by this Court on 26.06.2008. 2. Defendant Nos.1,2 & 3 formed a group of companies (Kanade group) who are stated to have infringed the Plaintiffs copyright. Defendant Nos.4 to 7 are the ex-employees of the companies who are stated to have defected to the Defendants’ group. Defendant Nos.8 to 12 are the partners of Defendant No.2 as also directors of Defendant No.1. Defendant No.13 to 23 are the fabricators to whom the Plaintiffs drawings have been shown to have been given upon theft from the Plaintiffs. Defendant No. 2 24 is a newly added Defendant which is also a company of the Kanade Group of Defendant Nos.1 to 3. 3. The Plaintiffs’ suit was upon Defendant Nos.1 to 3 using the drawings to manufacture parts of electro forged grating machines. The injunction has been granted in respect of the use of the Plaintiffs’ drawings in any three dimensional object. 4. After the grant of injunction the Defendants are stated to have “made” the electro forged grating machines itself. These are used by Defendant No.24 and the same place of business as that of Defendant Nos. 1 to 3. The Plaintiffs came to know of the use from the website of Defendant No.24. The Plaintiffs amended the plaint to show how the parts which were stated to have infringed the Plaintiffs’ copyright have been made into the machines and with the use of which the Defendants are marketing and selling the electro forged grating machines which is the final product. 5. The Plaintiff has, therefore, taken out this Notice of Motion for various reliefs including the relief of injunction against the Defendants for using the machine itself for marketing their products and for appointment of Court Receiver. 6. The Defendant Nos.1,2,3 & 24 contend that they have three such machines. One of them is imported from South Africa. The other two are purchased within India. The Defendant was directed to show the documentary evidence to substantiate that they have purchased these 2 machines or even parts thereof bonafide from suppliers in India of those parts. 7. The Defendants must, therefore, show that they are bonafide purchaser for consideration from bonafide sellers. 3 8. The Defendants have filed a further affidavit annexing various documents showing various purchases. In the interim application all the documents relied upon by the Defendants need not be gone into. Even if some of the documents are seen to be not bonafide purchases, the Plaintiffs case that the Defendants have used the Plaintiffs drawings to make a machine, which is a three dimensional object, from parts thereof would be made out. 9. Mr. Tulzapurkar has made a detailed list of the documents relied upon by the Defendants and collated them with prior averment of the Plaintiffs to show that the spare-parts which have been assembled to form a machine are not bonafide purchased. 10. A few illustrations in that behalf would suffice. 11. The Defendants have shown the invoice dated 13.06.2005 of MIPALLOY. This relates to three items which are described in the invoice. These same three items are shown in the purchase order placed by Defendant No.2 upon MIPALLOY, Exhibit L to the plaint. The dimensions are specific and identical. Defendant No.2 has sought to purchase them from MIPALLOY. The Plaintiffs alleged that the party was given the Plaintiffs’ drawings with the same description and dimension. The injunction came to be granted. The purchase is upon the order placed based upon the Plaintiffs’ drawings. The parts so purchased are used in the machine. No separate drawings of any product purchased from MIPALLOY are shown. The fact that the Defendants have purchased these products, not from, an independent party but, from MIPALLOY itself shows that it was a purchase based upon drawings of the Plaintiffs themselves for the 4 dimension of the product required to be supplied. 12. Similarly the Defendants have relied upon the invoice dated 26.07.2005. The product is supplied by Defendant No.20. Defendant No.20 is one of the fabricators to whom the Plaintiffs drawings were alleged to have been given upon theft. The drawings were recovered by the police in an investigation that ensued upon a criminal complaint of theft being lodged by the Plaintiffs. The complaint was lodged in May, 2005. The invoice showing sale is in July, 2005. The part which is sold to Defendants by Defendant No.20 is, therefore, from the drawings of the Plaintiffs. 13. Mr. Tulzapurkar rightly argued that the test would be in the Defendants showing their independent drawings. These have not been shown. The Plaintiffs drawings were with Defendant No.20 until they were recovered by the police under panchnama. They could have been copied or traced. Parts could have been supplied thereafter. The same parts have been assembled into a machine which, the Plaintiffs allege, is now “made”. The machine is a three dimensional object. The Defendants have been restrained from using the Plaintiffs’ drawings or making any three dimensional objects of the machines parts therefrom. The machine which is assembled, being a 3-dimensional object, therefore, falls within the mischief of the order. 14. The Defendants have produced another invoice dated 22.08.2005. This invoice is drawn by Defendant No.14 upon the Defendant Nos.1 to 3. Defendant No.14 is also one of the fabricators. The Plaintiffs drawings have been recovered by the 5 police also from Defendant No.14. The Defendants have not produced any other independent drawings for the parts supplied. These parts being admittedly used in the Defendants’ machines are, therefore, made from the drawings of the Plaintiffs. 15. The illustrations need not be multiplied. 16. The Plaintiffs have made out a prima facie case that the Plaintiffs’ drawings have been used in the final machine upon the amendment of the plaint. Prior to the order in the Notice of Motion and the amendment of the plaint, the Plaintiffs’ case was naturally in respect of the Defendants’ infringement of the copyright of the Plaintiffs by using the drawings of the Plaintiffs to make the parts of electro forged grating machines. Thereafter the parts have been assembled to form the machines. The Plaintiffs are, therefore, entitled to relief in respect of machines. 17. The use of the machines shows the infringement of the Plaintiffs copyright further than what was shown at the time of filing of the suit. The infringement is upon the assembled machine which is the subsequent event. The Defendants cannot be allowed to continue their business with the use of the machines, the parts of which have been produced from the drawings of the Plaintiffs in which the Plaintiffs have been held to have copyright since the machines would constitute a 3- dimensional object, the use of which has been prohibited. Hence the following order :- :: O R D E R :: 1. The Court Receiver is appointed Receiver in respect of 2 indigenous electro forged grating machines of the 6 Defendants. 2. The Brochures of the Defendants downloaded by the Plaintiffs from the Defendant’s website show two different types of machines, one imported and the other indigenous. The parties shall give the Court Receiver the photographs of the two machines produced by the Plaintiffs before the Court. 3. The Court Receiver shall seal the said two machines such as to prevent them from being used in any manner. 4. The Defendants shall be entitled to use the machine imported from South Africa. 5. Court Receiver to act on certified copy of this order. 6. No other relief need be granted. 7. This order is stayed for two weeks. ( ROSHAN DALVI, J.)