Sap Se v. Saraswati Technologies & ORS

$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 1664/2016 & IA No.16007/2016 (u/O XXXIX R-1&2 CPC) SAP SE ..... Plaintiff Through:

Ms. Astha Joshi, Adv.

Versus

SARASWATI TECHNOLOGIES & ORS ..... Defendants Through:

Counsel for D-1 (appearance not given).

Mr. R. Sasiprabhu, Mr. Biju P.

Raman, Mr. Vishnu Sharma, Mr.

Himanshu Suman and Mr. Raghu R.

Chandra, Advs. for R-17.

Mr. Shailesh K. Kapoor, Mr. Ajay Kumar and Ms. Suruchi Thapar, Advs. for D-19.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

% 19.01.2017 1.

This order is in continuation of the earlier orders dated 22nd December, 2016 and 6th January, 2017.

2.

The plaintiff is reported to have filed the requisite court fees. 3.

Though the process fee filed by the plaintiff for service of the defendants was returned under objection but the plaintiff has filed an affidavit of service and the counsel for the plaintiff, on enquiry, states that the said affidavit is with respect to the service of all the defendants. The counsel for the plaintiff further states that the defendants No.12 to 21 have complied with the ex-parte order dated 22nd December, 2016, again proving service thereof.

4.

Only the counsels for defendants No.1, 17 & 19 appear and none appears for the other defendants.

5.

There is no reason to disbelieve the affidavit of service of the plaintiff; even otherwise, the impleadment of defendants No.12 to 21 is only for compliance of the orders sought against defendants No.1 to 10 (defendant No.11 is in the nature of John Doe / Ashok Kumar). 6.

The non-appearing defendants No.12 to 16, 18 & 20 to 21 are accordingly proceeded against ex-parte.

7.

The defendants No.2 to 10 are websites and none appears for them also despite service.

8.

The defendants No.2 to 10 are also proceeded against ex-parte. 9.

The counsel for the defendant No.1 states that the defendant No.1 is willing to suffer a decree for permanent injunction in terms of prayer paragraph (a), (b) & (c) of the plaint. It is further stated that the defendant No.1 has offered to pay damages in the sum of Rs.4 lakhs to the plaintiff but the plaintiff is demanding lump-sum damages of Rs.10 lakhs. 10.

The counsel for the plaintiff and the counsel for the defendant No.1 seek time to resolve the aforesaid difference. 11.

In my view, there is no need to adjourn the suit for the said purpose. The grant of damages in such a situation is in the discretion of the Court. 12.

I have suggested that the defendant No.1 pays damages in the sum of Rs.7.5 lakhs to the plaintiff and the counsel for the defendant No.1 is agreeable thereto.

13.

Considering the nature of the claim and in accordance with the dicta in Satya Infrastructure Ltd. Vs. Satya Infra & Estates Pvt. Ltd. 2013 SCC OnLine Del 508 need to relegate the plaintiff to file ex-parte evidence against the defendants who have not appeared despite service is not felt. 14.

The plaintiff, on the basis of the pleadings and the documents filed, has made out a case for grant of ex-parte reliefs claimed against the ex-parte defendants also.

15.

Accordingly, a decree is passed in favour of the plaintiff and (i) against the defendants No.1 to 10 in terms of prayer paragraph (a), (b) & (c) of the plaint; (ii) against the defendant No.1 for recovery of lump-sum damages in the sum of Rs.7.5 lakhs; the said amount be paid within four weeks failing which the same shall incur interest @ 12% per annum from the expiry of four weeks here-from till the date of payment / recovery; (iii) against the defendants No.12 to 21 in terms of prayer paragraph (g) of the plaint, save that the services to be blocked would be of the defendants No.1 to 10 instead of defendants No.1 to 11 websites. 16.

The parties are left to bear their own costs. Decree sheet be drawn up.

Copy of this order be given dasti under the signatures of the Court Master.

RAJIV SAHAI ENDLAW, J.

JANUARY 19, 2017 'bs'..