Microsoft fined for using its “money power”

The Delhi High Court was hearing Microsoft Corporation's plea against four different defendants, alleging violation of copyright. The court ruled that Microsoft had selected a court which was so far away from each of the defendants that it was a “harassment for the defendant(s)” to contest the suit itself

The Delhi High Court has asked Microsoft Corporation to cough up Rs800,000 ($16,000) for opting to fight four copyright violation cases in the Indian capital, even though these cases had originated in other cities.

The order came after the court found that the alleged violations occurred in Bengaluru, Hyderabad, Chandigarh and Mumbai.

Not only did the court note that Microsoft had offices in these cities, but it also said that the company was using "money power" to "harass" the defendants, who would have to travel to Delhi to fight the cases. Another reason why Microsoft was found to have chosen the Capital to fight the cases was that the Delhi High Court has the jurisdiction to order compensation of up to Rs20 lakh.

"When the Constitution of India provides equality before law, this equality has to be all-pervasive and cannot be allowed to be diluted because of money power or lobbying power," said Justice SN Dhingra in his order. "One cannot be given liberty to choose a court of his liking because of his money power. There should be one definite court where the suit can be filed by everybody and one cannot hire the services of the court of his choice," the Judge said.

The court was hearing Microsoft Corporation's plea against four different defendants, alleging violation of copyright on grounds of suspicion that they were using pirated software.

Microsoft said that it was fighting the cases in New Delhi as it has its office in based in New Delhi. However, the court told Microsoft if it wanted the cases to be heard here, it would have to deposit a sum of Rs2,00,000 per case as a security cost. The amount will be kept with the registrar general of the Delhi High Court till the final disposal of the four cases. It will be given to the defendants if the cases are found to be false.

The court also appointed a local commissioner to probe the allegations. All the expenses of the local commissioner, including his fees, which is Rs25,000 per day, will have to be incurred by the multinational company.

Terming Microsoft's act as “harassment for the opposite party”, the court said, "Given the present interpretation of a section of the Copyright Act, a multinational company having its office within the same district where the case of action arose, defendant resided and where witnesses would be there and (where) it is convenient for the court as well as for the parties to contest the suit, may refuse to file the suit in that State court and choose a distant court faraway from the office of the defendant.

"But on the strength of its money power it has the added advantage of choosing a court of its own liking which is so far away from the defendant that it becomes problematic and a harassment for the defendant to contest the suit itself."

The next hearing is scheduled on 18 January 2010.

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    How SEBI failed to regulate the Osian Art Fund

    SEBI failed to regulate the Osian Art Fund under its regulations covering Collective Investment Schemes, despite its own advisory against unregulated art funds in 2008

    The Securities and Exchange Board of India (SEBI) has a mandate to regulate what are called as collective investment schemes (CIS), which pool together investors’ money to invest in a variety of schemes.

    However, SEBI failed to regulate the Osian Art Fund under CIS regulations. Though SEBI issued an advisory against unregistered art funds in 2008, it failed to regulate the Osian Art Fund, which was the first fund among the unregulated art funds which were floated during that time.

    In October 1999, SEBI had formulated the CIS regulations which stated that “any person proposing to carry any activity as a Collective Investment Management Company on or after the commencement of these regulations shall make an application to the Board for the grant of registration in Form A.”

    Clearly, under this rule, Osian Art Fund, which pooled investors’ money to invest in art, was supposed to be regulated by SEBI.

    However, the Osian Art Fund was not regulated by—or registered with—any regulatory body. Excerpts from the 5th six-monthly disclosure report prepared by the Fund, reveal the entire story. Osian Art Fund was launched in 2006 and was served a show-cause notice by SEBI in November 2007 asking as to why the Fund should not be regulated. Osian had a hearing with SEBI later in 2008. However, in both instances, SEBI did not revert with any further communication. This shows a shocking derecliction of the implementation of SEBI’s regulatory process.

    In its ‘risk factors’ section of the six-monthly report, Osian Art Fund stated that, “On 12 October 2007, the Securities and Exchange Board of India (“SEBI”), the Indian securities market regulator, issued a show-cause notice (“Notice”) to Osian’s–Connoisseurs of Art Private Limited, the asset management company of the fund, seeking an explanation as to why the Art Fund should not be regulated in terms of the SEBI (Collective Investment Schemes) Regulations, 1999 (“CIS Regulations”)”.

    Osian claims to have submitted a detailed response in December 2007 to the show-cause notice.

    However, after this response, the Osian report claims, there was no further communication from SEBI. “As the duly appointed trustee of the Art Fund, Oseta Investment Trustee Co. Pvt Limited (“Oseta”) submitted a detailed response to the Notice on 21 December 2007. SEBI has not reverted to Oseta with any further queries, concerns or directions on this issue as of date,” the report further stated. This report was released in February 2009.

    Later, in a press release dated 13 February 2008, posted on SEBI’s official website, SEBI advised investors with regard to their investments in art funds. The press release stated that “SEBI has advised investors with regard to their investments in “Art Funds” that “Art Funds” are “Collective Investment Schemes” as defined under the SEBI Act. However, no entity has registered with SEBI, under the SEBI (Collective Investment Schemes) Regulations.”  The press release further stated that “launching or floating of “Art Funds” or Schemes without obtaining registration from SEBI amounts to violation of the SEBI Act and Regulations. Appropriate actions, civil and criminal, under the SEBI Act may be taken by SEBI against such funds/companies.” 

    Followed by this new advisory, Osian was granted an opportunity for a hearing before the whole-time director of SEBI on 5 September 2008. Again, there was no further communication from SEBI after the hearing.

    “Osian presented the case to SEBI through its legal galaxy, explained their viewpoint at length on legal as well as industry-specific issues and made submissions; since then, there has been no further communication from SEBI. No directions for registration under the CIS Regulations have been issued to the Art Fund or Oseta Investment Trustee Co. Pvt. Ltd. as of date,” stated Osian’s six-monthly report released in February 2009. Concerned officials from Osian and SEBI did not respond to the email sent by Moneylife on this issue.

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    Sharat Jain

    7 years ago

    We have also not received the redemption proceeds from Osian's Art Fund. We have written on many forums, but till date no action has been taken against this scheme. It is very hard to digest that this type of schemens are first floated under the nose of our Govt., and then when the company is unable to pay back (for the reasons best known to them), they try to delay the matter for years & years on one pretext or the other. Sharat Jain. New Delhi.


    9 years ago

    Since ABN were the prime managers for me as a fund advisor, can I take legal action against them?

    Aditya Shah

    1 decade ago

    great revamp of website. nice design which loads very fast.

    keep it up.

    no web design team member credits anywhere.

    pl create their section.

    Udit C

    1 decade ago

    Not a single regular art collector has invested in any Art Fund. The type of investors or a typical profile of an Art Fund investor would be an interesting study in itself.

    ICICI’s UK arm accused of mistreating whistleblower: Report

    According to media reports, the bank tried to repatriate the dealer, S Kapoor, immediately to India against his wishes, after it was confirmed that he had informed the UK FSA about alleged irregularities

    India's leading private lender ICICI Bank Ltd's UK subsidiary has been accused by the Employment Tribunals in London of mistreating a whistleblower, a media report says.

    According to a report in the Financial Times (FT), the bank tried immediately to repatriate the dealer, S Kapoor, to India against his wishes after it was confirmed that he had informed the UK Financial Services Authority (FSA) about alleged irregularities.

    In a ruling last month on the case, the Judge wrote, "It is our conclusion (that) the respondent (ICICI) subjected him to a detriment and that it did so because of the protected disclosures that he made internally and more importantly, to the FSA."

    Meanwhile, ICICI Bank said the matter was sub judice but it rejected the allegation that Mr Kapoor's repatriation was linked to his disclosures, saying it was instead due to the closure of his division, the proprietary trading group (PTG).

    The FT quoted the bank as saying that "we insist that there is no connection between the whistle-blowing incident and the decision to close the PTG.”

    In January, Mr Kapoor and a colleague noticed that their superior on the three-man team was allegedly altering records to cover up his trading losses, which touched more than $1 million in 2008, the tribunal ruling said. The pair reported the issue to the management, prompting an internal investigation, the daily said.

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