John Wiley and Sons Inc. and Others vs Alpa Agarwal and Another

Shiv Narayan Dhingra, J.—This suit is listed for final disposal in view of ex parte evidence of plaintiffs. In the present suit, plaintiffs have made allegations that defendant Alpa Aggarwal was trading as Rawbooks-86 through ebay and was illegally exporting the books viz. students editions brought out by plaintiffs for South Asian countries, at cheaper rates to Europe and America and other countries. These books specifically had a public notice that they were for sale in India, Pakistan, Bangladesh, Nepal and Sri Lanka only and their circulation outside these countries was strictly prohibited. However, defendants had opened a book store on site www.ebay.com for sale of these books and the plaintiffs visited the book store of defendants and placed an order for purchase of the plaintiffs'' publication. plaintiffs representative also received e-mails confirming purchase order and plaintiff thus learnt that Alpa Aggarwal was trading as rawbooks86 and plaintiff purchased the books and payments were made to [email protected] namely Dr. A. Beotra (defendant No. 2 herein). It is submitted that the plaintiffs do not know the exact constitution of defendants.

The plaintiffs in the present suit had given an address of defendants where summons of the Court were sent. It was then found that this was the incorrect address and defendants were not living at the given address and the house belonged to some other person. The registered post and other normal modes of service were tried to serve defendants at the given address but since the identity and address of defendants were not known service could not be effected. The plaintiff then served through e-mails and defendants were proceeded ex parte on the basis of this service through e-mail. However, I consider that an injunction by the Court can be issued only against a real and legal person and not against a fictitious person having fictitious address. An injunction can be issued against an individual, a company, a corporate body, statutory body, partnership firm having real partners, a proprietorship firm having real proprietor but injunction cannot be granted against a fictitious person. The sole purpose of issuing injunction is that the Court can enforce its injunction. If the Court cannot enforce its injunction by any mode whatsoever, there is no meaning of issuing such an injunction.

I, therefore, consider that in this case plaintiff should have, by engaging a detective agency or by some other mode, traced out the real identity of defendants so that the Court could issue an effective injunction which could be implemented. Issuing an injunction against a fictitious person or a fake person created for the sake of cyber world has no meaning.

Thus, the judgment in this case cannot be pronounced on the basis of ex parte evidence. An opportunity has to be given to plaintiffs to trace out the real identity of defendants and inform the Court about the real identity so that the Court can pass an injunction effective order.

List this matter now on 18th March, 2010.