MOHAN CHAND NALIWAL Vs. RAKESH GARG

JUDGEMENT

(1.) Mahesh Chand Maliwal has filed the present suit under Section 55 of the Copyright Act, 1957 for permanent injunction against infringing of the copyright, rendition of accounts and delivery up of goods. The facts alleged are that plaintiff claims that he is software programmer and 1E doing the said professional work for last more than ten years. He is carrying on the business of developing, installing and maintaining software under the name and style of M/s Excelsior Software as a sole proprietor. Prior to that he was carrying on the busines under his own name Mohan Chand Naliwal. 'Due to his hard labour he developed software useful for purposes of keeping and maintaining the financial accounts. He named the said financial accounting software as Integrated Financial Accounting Package. It was installed in the computers being used by certain other companies. The plaintiff improved modified and changed and developed his own skills to make useful for maintaining the maintenance records of the vehicles. In 1996 plaintiff further developed modified and maintained his previous work by his own skill. The said software was installed and right to use only as a licensee with Sagar Estate. The plaintiff further modified his original work. In 1997 he was approached to develop and modify his original software to make it useful for business to chit fund. He had been able to do the same.

(2.) . It is asserted that defendant no.1. is the proprietor of defendant no.2. It came in contact with the plaintiff. Defendant no.1 approached the plaintiff that he had certain clients who were in need of software developed by the plaintiff as it was excellent to meet out the requirements of persons dealing in the business of pharmaceutical and allied products. Defendant no.1 offered himself to allow him to do the work of marketing Pharma Integrated Financial Accounting Software for the plaintiff on sharing basis. The defendant proposed that for the orders the defendants had to bear the expenditure like conveyance, running establishment. 'Therefore, out of the total income the defendant was being allowed 1/3rd as expenses and 1/3rd as their share for marketing. Defendant assured that they would disclose the exact income received from individual clients because it may vary from individual to individual. The plaintiff allowed the defendants, as per the said oral agreement to do the marketing of Pharma Integrated Financial Accounting Software. The defendants brought certain orders to use the said Pharma Integrated Financial Accounting software to the new clients through the defendants. The defendants paid the share of the plaintiff only in respect of the clients which have been shown at serial no.1 to 26. Subsequently, it is alleged that defendant No.1 became dishonest. Plaintiff asserts that he is entitled to some of Rs.1,61,000.00 as per 1/3rd of the total amount received by the defendants. The defendants are avoiding to make the payment. It is further alleged that he came to knew that defendants have published a notice in 'Sandhy Times' newspaper that defendant no.1. claims to be the owner of the said accounting software. On inspection of the register maintained by Registrar, Copyrights, it was revealed that defendant through Everest Trade Mark, Delhi had filed an application for registration of Pharma Integrated Financial Accounting Software. The plaintiff filed his objections that he is the sole absolute and exclusive owner of the said software. He had developed the same. The defendants are stated to be having no right in this regard.

(3.) . On these broad facts a decree for permanent injunction against the defendants, its employees 15 claimed to restrain then from infringing selling, transferring or dealing with the software Pharma Integrated Financial Accounting Software and directing them to render accounts of the sales.