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Judgment
The Appellants are aggrieved by an order dated 3rd September, 2009 passed by a learned Single Judge in an application filed by the Respondent under Order 39 Rule 1, 2, 7 and 10 read with Section 151 of Civil Procedure Code. The Respondent had filed a suit against the Appellants for infringement of copyright, passing off, unfair competition, rendition of accounts etc. and praying for perpetual injunction, damages and other relief against the Appellants.
In the suit the Respondent moved an application under Order 39 Rule 1, 2, 7 and 10 read with Section 151 CPC on which the impugned order was passed by the learned Single Judge.
By the impugned order the learned Single Judge directed the Appellants to deposit the proceeds of sales of a software marketed by the Appellants. In this context, it is relevant to note that according to the Respondent the software was originally prepared by the Respondent and about 9,382 lines of the source code have been copied by the Appellants. It was submitted that the copying is not a mere coincidence but a clear case of violation of the copyright of the Respondent in this regard.
The learned Single Judge also directed the Appellants, in view of the Order 39 Rule 10 of the CPC to deposit the proceeds of the sale of the software which is said to be a copied version of the software of the Respondent.
We have gone through Order 39 Rule 10 of the CPC which reads as under:
"10. Deposit of money, etc. in Court- Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."
It is clear, on a plain reading of this provision, that no power is vested in the Court to direct the deposit of any amount unless there is an admission by the Appellants. In the present case, there is no admission by the Appellants that the amount is either due to the Respondent or is held on behalf of the Respondent as a trustee.
Similarly, Order 39 Rule 2 does not postulate the deposit of any amount. On the contrary, Order 39 Rule 2 (2) enables the Court to pass an order of injunction and for keeping accounts, or giving a security or otherwise as the Court may think fit, in the facts and circumstances of the case.
In our opinion, since the suit filed by the Respondent claims rendition of accounts, at this preliminary stage it may not be appropriate to direct the Appellants to deposit the sale proceeds because that would virtually amount to decreeing the suit in favour of the Respondent. In our opinion the appropriate order to pass in this case would be to direct the Appellants to maintain account of the sale proceeds on a month to month basis and if it is so required at a later stage, the accounts may be produced in Court. Learned counsel for the Appellants assures that the accounts are already being maintained and will continue to be maintained till the disposal of the suit. With these observations, the appeal is disposed of and the impugned order dated 3rd September, 2009 is modified to the extent indicated above.