FOUNDRY VISIONMONGERS LIMITED PLAINTIFF Vs. PARISH TEKRIWAL

JUDGEMENT

(1.) I have heard Dr. Saraf for the Plaintiffs He seeks to move without notice in this action for copyright infringement. The immediate application is for urgent ex parte reliefs in the nature of an Anton Piller order. Such orders have been passed before. There is a reference to one such order recognised by the Supreme Court in Mohit Bhargava v. Bharatbhushan Bhargava (2007) 4 SCC 795. The Calcutta High Court too has passed such orders in the past. I myself have had previous occasion to pass such an order. Order dated 13th August 2014 in G. M. Breweries Ltd. v. The Sanjivani (Takli) Sahakari Sakhar Karkhana Ltd. & Ors., Notice of Motion (L) No. 1834 of 2014 in Suit (L) No. 766 of 2014. Dr. Saraf also points out that annexed to the Plaint is a copy of another reported decision in Foundry Visionmongers Limited v. Ankur Sudhir Sachdev & Ors. 2016 (65) PTC 388 (Bom); Plaint, p. 250. This was an order by S.C. Gupte J. It is in respect of the very same software, the infringement of which is complained of in this Suit as well. Gupte J. also relied on the decision of a Division Bench of the Delhi High Court in Autodesk Inc & Anr. v. A.V.T. Shankerdass & Anr. 2008 (37) PTC 571 (Del.)

(2.) For the record, I must note that these orders are well-known. They have been established in England in the 1975 case of EMI Limited v. Pandit [1975] 1 All ER 418, per Templeman J. and, a little later in the same year in Anton Piller KG v. Manufacturing Processes Limited, [1976] 1 All ER 779 the case from which the principle takes its name.

(3.) In Anton Piller, Ormrod LJ set out the three probanda necessary for grant of such an order. First, that the Plaintiff must make out an extremely strong prima facie case against the Defendant. Second, that there must be in the Plaint itself sufficient material to show that the potential damage to the Plaintiff is indeed very serious. Third, that there is clear evidence that the Defendants have in their possession relevant documents or things by which it is established that there is a real possibility not only of their use but that should they be given notice, they will destroy this material before a proper application with notice can be made.