CS(COMM) No.70/2015

Page 1 of 15

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CS(COMM) No.70/2015

%

23^rd December, 2015

MICROSOFT CORPORATION & ANR.

..... Plaintiffs

Through:

Ms. Safia Said, Advocate.

versus

MR. SUJAN KUMAR & ORS.

.....Defendants

Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

YES

VALMIKI J. MEHTA, J (ORAL)

I.A. No.26118/2015 (exemption)

1.

Exemption allowed subject to just exceptions.

I.A. stands disposed of.

+ CS(COMM) No.70/2015 and I.A. Nos.26116/2015 (stay) &

26117/2015(appointment of Local Commissioner)

2.

I must begin this judgment with the statement that it is

unfortunate that certain plaintiffs, and if I may say so certain lawyers also,

in spite of obvious legal positions and also obvious legal propositions, such

2015:DHC:10487

CS(COMM) No.70/2015

Page 2 of 15

litigants/plaintiffs as also their lawyers insist on taking chances by filing the

suits which are in violation of the mandatory provisions of law stated in the

Code of Civil Procedure, 1908 (CPC) pertaining to joinder of parties and

causes of action. The reason for stating this preliminary statement is

because plaintiffs in this suit allege violation of copyrights of its softwares

by a total of five defendants-companies in the suit but each of the five

defendants-companies are independently alleged to be violating copyrights

of softwares of the plaintiffs without violation by one defendant-company

being related to violation by the other. Putting it in other words, it is not that

one main defendant is violating the copyrights of the softwares of the

plaintiffs and other defendants are claiming only through that one main

defendant. Each defendant which is alleged to be violating the software

copyrights of the plaintiffs is a different company and hence a completely

different entity than the other defendants-companies-entities. I would also

like to bring on record that a similar situation, albeit which deals with the

issue of misjoinder of the plaintiffs and not the defendants, arose in a suit

filed by the same plaintiffs and through the same lawyers and which was

CS(OS) No.3399/2015 titled as Microsoft Corporation & Ors Vs. Sandesh

Properties Pvt Ltd & Ors. This suit CS(OS) No.3399/2015 was argued in

detail before this Court on 1.12.2015 and finding issues existing of

2015:DHC:10487

CS(COMM) No.70/2015

Page 3 of 15

misjoinder of parties-plaintiffs as each plaintiff owned separate softwares,

and hence also misjoinder of causes of action qua such plaintiffs, the suit

was prayed to be withdrawn. This prayer was allowed for suit to be

withdrawn with liberty to file separate suits by each separate plaintiff

including for the reason that if there is joinder of causes of action, then in

such cases, as per Section 17 of the Court-fees Act 1870, separate Court fee

is payable qua each cause of action for each plaintiff and which was not

done in the suit which was allowed to be withdrawn.

3.

At this stage, let me reproduce the memo of parties in the

present suit and which is as under:-

“

MEMO OF PARTIES

Microsoft Corporation

925 Fourth Avenue,

Suite No.2900, Seattle,

Washington 98104 – 1158

Unites State of America

…..Plaintiff No.1

Microsoft Corporation India Private Limited,

807, New Delhi House,

Barakhamba Road,

New Delhi-110 001

….Plaintiff No.2

Versus

Mr. Sujan Kumar,

Plot No.379, Road No.10,

Jubilee Hills,

Hyderabad-500 033

…Defendant No.1

M/s. Krishnapatnam Port Company Limited,

2015:DHC:10487

CS(COMM) No.70/2015

Page 4 of 15

48-9-17, Dwarkanagar,

Visakhapatnam-530 016

Also at

Plot No.379, Road No.10,

Jubilee Hills,

Hyderabad- 500 033

Also at

P.O. Bag No.1, Muthukur,

Dist. Nellore-524 344,

Andhra Pradesh

Also at

M-3, 3^rd Floor,

Hauz Khas,

Sri Aurobindo Marg,

New Delhi-110 016

…Defendant No.2

M/s. Navayuga Engineering Company Limited

48-9-17, Dwarkanagar,

Visakhapatnam-53