Judgment Ms. Nirmaljit Kaur, J. (Oral):-The present revision petition is filed against the impugnedorder dated 24.05.2018 passed by the Additional District Judge, Amritsar,dismissing the application filed by the petitioner under Order 1 Rule 10CPC seeking deletion of his name from the array of parties in suit No.16 of2016 as defendant No.4. 2. Respondent No.1 initiated the suit against the petitioner andother defendants seeking relief of permanent injunction, damages andrendition of the defendants’ accounts for infringement of his copyright overhis literary works. Respondent No.1 further claimed that his literary workwas being made available for sale on various websites, including thewebsite www.facebook.com and applications for mobile devices and tablets(“Facebook Service”), in an authorized manner. 3. An application was filed by the petitioner for deletion of hisname from the array of parties on the ground that the petitioner, namely, “Facebook India Ltd.” was not responsible for hosting the content, thatappeared on the Facebook service or any website, and does not operate orcontrol the Facebook service. It has no authority to comply with any orderpassed by the trial Court in relation to the suit. However, the applicationwas dismissed on the ground that the petitioner - Facebook India Ltd. wasan Indian arm of defendant No.3 to the suit that Facebook INC which is acompany incorporated in the United States of America. Secondly, therespondent had been duly served with a notice, but still he continued toviolate the copyright. Since, the prayer was for rendition of accountsregarding sale of the respondent’s book, the respondent’s name cannot bedeleted simply on the ground that it had no control or was not in a positionto operate the Facebook service. 4. While praying for setting aside the impugned order, learnedcounsel for the petitioner submits that it does not own or operate any serverthat hosts any content appearing on the facebook service and even if, thepetitioner is considered to be the Operator and Controller of Facebookservice, which it was not, it is only an intermediary under the InformationTechnology Act, 2000 (for short, ‘IT Act’) and, therefore, was liable to beexempted from any liability as provided by Section 79 (1) of the IT Act, asit has no role in initiating transmission or selecting the receiver. 5. 5. Reliance was placed on the judgments of the Delhi High Courtrendered in Kamdhenu Limited v. Jindal Steel & Power Limited and others [CS (Comm) No.1229 of 2018] decided on 19.07.2019; Facebook India Online Services Pvt. Ltd. v. Mufty Aijas Arshad Qasmi [C.R.P.No.78/2012] decided on 26.08.2013; Bhaichung Bhutia v. Soumik Dutta and others [CS(OS) No.2504 of 2014] decided on 29.09.2015; and M/s Amira Pure Foods Pvt. Ltd. v. Goyal Trading Company and others [CS(OS) No.2853 of 2015] decided on 14.07.2016, to support the argument thatin similar facts, it was duly held that Facebook India Ltd. was not a properparty. Further, even if, it is assumed that it was a necessary party, still nosuit can be filed till the procedure laid down under Section 52 (C) of theCopyright Act, 1957, is followed and that in the present case, the saidprocedure was not followed. No notice was issued to the petitioner beforethe filing of the suit, which is mandatory, nor was there any compliance ofRule 75(1)(f) of the Copyright Rules, 2013, requiring an undertaking to begiven in the said notice that complainant shall produce a copy of the ordersof competent Court within 21 days giving direction refrain from facilitatingany access. It was further submitted that, the petitioner was in any caseexempted from liability under Section 79 of the IT Act as there was noallegation of conspiracy or abatement against it and it also fulfilled thecondition laid down in Section 79(2) of the Act. In order to support hiscontention, reliance was placed on the judgment of the Hon’ble Apex Courtin Shreya Singhal v. Union of India, 2015(5) SCC 1 . 6. In order to support hiscontention, reliance was placed on the judgment of the Hon’ble Apex Courtin Shreya Singhal v. Union of India, 2015(5) SCC 1 . 6. Learned counsel for respondent No.1 on the other hand whilevehemently opposing the revision petition relied upon a judgment of learnedSingle Bench of this Court in Google India Private Ltd. v. M/s Shree Krishna International and others, (CR No.7034 of 2012), decided on26.11.2012, to contend that defendant cannot be permitted to walk off fromthe proceedings simply on the ground that it has no role to play and wasneither server nor has any business connection with Facebook INC.Further, the judgment rendered in the case of Google India Private Ltd.(supra) was upheld by the Hon’ble Apex Court vide order dated 16.08.2016.It was further argued that the counsel for the Facebook INC, who wasdefendant No.3 in the suit had made a statement before the trial Court thatFacebook INC is willing to take action URLS on the Facebook service aswill be directed by the Court, which shows that the petitioner had a specificrole to play. Reliance was also placed on the judgment of the learned SingleBench of this Court in Microsoft Corporation Pvt. Ltd. v. Rajesh Duseja and others,  (CR No.7783 of 2018), decided on 15.01.2019, vide which therevision against the order dismissing the application for deletion of namewas dismissed. Further, since one clicks on sharing link icons on defendantssign/adwords in advertisements by defendant the page is redirected to thefacebook community of online channels selling the literary works of theplaintiff, carry loss to the petitioner, the petitioner cannot escape from itsliability Heard. 7.The judgment rendered in the case of Google India Private Ltd. (supra), relied upon by the learned counsel for respondent No.1-plaintiff, will not help in the present case. In the said case, the applicationfor deleting the name of defendant was dismissed as there was a specificallegation of connivance by the defendant with the other defendants for theinfringement of the Copyright. It was in view of the same, the Hon’ble ApexCourt refused to interfere and dismissed the appeal filed against the orderdated 26.11.2012 passed in Google India Private Ltd. (supra). Similarly,the judgment rendered in the case of Microsoft Corporation Pvt. Ltd.(supra), referred by respondent No.1-plaintiff, was passed in view of theallegation alleged in the plaint. It was in view of the same, the Hon’ble ApexCourt refused to interfere and dismissed the appeal filed against the orderdated 26.11.2012 passed in Google India Private Ltd. (supra). Similarly,the judgment rendered in the case of Microsoft Corporation Pvt. Ltd.(supra), referred by respondent No.1-plaintiff, was passed in view of theallegation alleged in the plaint. In any case, on remand by the Apex Court,the learned Single Bench in the second round in the case of Blueberry Books and others vs. Google India Pvt. Ltd. and others, [CS(Comm)116/2017] dismissed the suit against Google India Private Ltd. in view ofSection 79 of IT Act granting exemption from liability to the intermediaries.Against the order dated 30.1.2018 passed by the learned Single Benchdismissing the suit, the Blueberry Books filed LPA before the DivisionBench. The Division Bench dismissed the appeal by holding that no noticeas required under the IT Act and Rules was ever issued. In the present casetoo, the said notice was never issued to the petitioner. Notice issued to otherdefendant i.e. Facebook INC is not a notice to Facebook India Private Ltd. 8. After having heard learned counsel for the parties as also goingthrough the various judgments relied upon by the parties, this Court findsthe judgments rendered in Facebook India Online Services Pvt. Ltd. andBhaichung Bhutia (supra) are squrely applicable in the given facts. In thecase of Bhaichung Bhutia (supra) the name of Facebook India Pvt. Ltd.was deleted while allowing the application under Order 1 Rule 10 CPC, byway of the following order:- “The abovementioned application has been filed bydefendant No.5 Facebook India Pvt. Ltd. under Order 1 Rule 10CPC for deletion of its name. Learned Senior counsel appearingon behalf of the applicant/defendant No.5 is pressing fordisposal of this application. He submits that defendant No.5 isnot the necessary or proper party for the purpose ofadjudication of the present suit. He further submits that thefacebook service in question is being controlled by defendantsNo.3 & 4 and defendant No.5 does not own or control theservers that host content on the facebook service. Thus, there isno role of defendant No.5 to comply with the orders, nor thesaid defendant is responsible for hosting the contents. He further submits that thefacebook service in question is being controlled by defendantsNo.3 & 4 and defendant No.5 does not own or control theservers that host content on the facebook service. Thus, there isno role of defendant No.5 to comply with the orders, nor thesaid defendant is responsible for hosting the contents. In view of the averments made in the application as wellas for the reason that defendant No.5 does not own or operateany server and it is not responsible for hosting the contents thatmay appear on any website, the prayer made therein is allowed.Accordingly, the name of defendant No.5 is deleted from thearray of parties. Let the amended memo of parties be filedwithin two weeks.” 9. Similarly in the case of M/s Amira Pure Foods Pvt. Ltd.(supra), application under Order 1 Rule 10 CPC filed by the Facebook IndiaOnline Services Pvt. Ltd. for deletion of its name from the array of partiesas defendant, was allowed by observing as under: “Plaintiff has filed the suit for damages and recovery ofmoney on account of defamation with a consequential relief ofperpetual injunction against eleven defendants. Relief againstdefendant no.10 has also been specifically claimed in para (c)of the prayer clause in plaint. Except the general baldallegations against defendant No.10 that defamatory videos andremarks/comments were uploaded on its socialmedia/networking platform, no specific role has been attributedto defendant no.10 as to how it has any control over the serveror the Facefook services.” 10. In the case in hand too, petitioner-Facebook India Limited isintermediary of the Facebook INC. It has no control over the server and noroperates the server and nor plays host to the contents on the website. Thesefacts are not disputed by the respondent-company. The revision deserves tobe allowed on this ground above. 11. In any case, as admitted by respondent No.1/plaintiff himself,learned counsel for defendant No.3 in the suit has already made a statementthat Facebook INC is willing to take action URLs on the facebook serviceas will be directed by the Court. 12. Although, the above facts in themselves as stated above aresufficient to allow the revision but there is another way to look at the entirematter. The plaint has admittedly been filed under the Copyright Act, 1957,including Section 52 of the same. 12. Although, the above facts in themselves as stated above aresufficient to allow the revision but there is another way to look at the entirematter. The plaint has admittedly been filed under the Copyright Act, 1957,including Section 52 of the same. Section 52(1)(c) of the Copyright Act,1957 reads as under: “Section 52(1)(c):- transient or incidental storage of awork or performance for the purpose of providing electroniclinks, access or integration, where such links, access orintegration has not been expressly prohibited by the rightholder, unless the person responsible is aware or hasreasonable grounds for believing that such storage is of aninfringing copy: Provided that if the person responsible for the storage ofthe copy has received a written complaint from the owner ofcopyright in the work, complaining that such transient orincidental storage is an infringement, such person responsiblefor the storage shall refrain from facilitating such access for aperiod of twenty-one days or till he receives from thecompetent court refraining from facilitating access and in caseno such order is received before the expiry of such period oftwenty-one days, he may continue to provide the facility ofsuch access.” 13. A perusal of the above proviso shows that no suit could havebeen filed till the complaint or notice is sent to the person responsible forthe storage or violation of copyright and thereafter the said person shallrefrain from facilitating any access, that too for a period of 21 days. After21 days, the person giving notice is required to show a copy of the orderrestraining from granting access. In the present case, no notice was issued tothe present petitioner. The alleged notice has admittedly been issued toFacebook INC and not to the present petitioner, who is neither a server norin control of the server, rather it is allegedly one of the intermediarieshaving no control on the server. 14. Further, Rule 75 of the Copyright Rules, 2013 makes itmandatory to give an undertaking in the said notice that the complainantshall produce the order of the competent Court within 21 days of the receiptof the said notice. Rules 75(1), (2)(f), (5) & (6) of the Copyright Rules,2013 read as under:- “75. (1) Any owner of copyright may give a complaint inwriting under clause (c) of sub-section (1) of section 52, to aperson who has facilitated transient or incidental storage ofwork for providing electronic links, access or integration torestrain from such storage of work. Rules 75(1), (2)(f), (5) & (6) of the Copyright Rules,2013 read as under:- “75. (1) Any owner of copyright may give a complaint inwriting under clause (c) of sub-section (1) of section 52, to aperson who has facilitated transient or incidental storage ofwork for providing electronic links, access or integration torestrain from such storage of work. (2)(f) Undertaking that the complainant shall file aninfringement suit in the competent court against the personresponsible for uploading the infringing copy and produce theorders of the competent court having jurisdiction, within aperiod of twenty-one days from the receipt of the notice. (5) The person responsible for storage may restore thestorage of the work in case the complainant failed to producethe orders of the competent court having jurisdiction,restraining him from facilitating access. (6) In case the complainant fails to produce the orders ofthe competent court having jurisdiction within the stipulatedperiod, the person responsible for storage shall not be obligedto respond to any further notice sent by the same complainanton the same work in the same location.” 15. Admittedly, no such notice was given, let alone givingundertaking in the said notice. Thus, the suit would not be in any casemaintainable against the present petitioner. 16. Section 79 of the IT Act provides exemption from liability ofintermediary in certain cases. Section 79(2) of the IT Act requires certainconditions to be fulfilled for taking the benefit of Section 79(1) of IT Act.Similarly, application Section 79(1) is subject to sub Section 3 of Section 79of the IT Act. It would be relevant to reproduce Section 79(1) (2) (3) whichread as under:- “79. Exemption from liability of intermediary in certain cases.– (1) Notwithstanding anything contained inany law for the time being in force but subject to theprovisions of sub-sections (2) and (3), an intermediary shallnot be liable for any third party information, data, orcommunication link made available or hosted by him. (2) The provisions of sub-section (1) shall apply if– (a) the function of the intermediary is limited toproviding access to a communication system overwhich information made available by third parties istransmitted or temporarily stored or hosted; or (b) the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in thetransmission; (c) the intermediary observes due diligence whiledischarging his duties under this Act and alsoobserves such other guidelines as the CentralGovernment may prescribe in this behalf. (3) The provisions of sub-section (1) shall not applyif– (a) the intermediary has conspired or abetted or aidedor induced, whether by threats or promise orotherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on beingnotified by the appropriate Government or its agencythat any information, data or communication linkresiding in or connected to a computer resourcecontrolled by the intermediary is being used tocommit the unlawful act, the intermediary fails toexpeditiously remove or disable access to thatmaterial on that resource without vitiating theevidence in any manner.” 17. It is not disputed that the present petitioner is one of theintermediaries of facebook INC. There is nothing in the plaint to say that thepresent petitioner initiates the transmission or is in position to select theserver or modify the information in the transmission. There is not a word ofallegation qua the conspiracy or adding or inducing or power to control theserver. Hence, the petitioner satisfies all the conditions for seekingexemption under Section 79 of the IT Act. In these circumstances, thepetitioner is otherwise also entitled to the exemption from liability. As such,under no circumstances, a necessary party. The observations in the case ofShreya Singhal’ (supra) clarifies the object behind Section 79(3)(b) of theIT Act, which is “for the reason that otherwise it would be very difficult forintermediaries like Google, Facebook etc. to act when millions of requestsare made and the intermediary is then to judge as to which of such requestsare legitimate and which are not”. 18. In the present case, the petitioner was not even given a noticeas envisaged under Section 79 of the IT Act to enable him to act upon anyinformation, leave alone a Court order. 19. In view of the above, the present revision petition is allowedtaking into account that the petitioner is neither the server and nor cancontrol the server. No mandatory notice as required under Rule 75 of theCopyright Rules 2013 as well as Section 52(1)(c) of the Copyright Act,1957 as also in view of Section 79 of the IT Act was ever issued. Further,in the absence of any allegation of malafide or connivance against thepresent petitioner in the plaint, the impugned order dated 24.5.2018 is setaside and the name of the petitioner as defendant No.4 is accordinglydeleted from the array of the parties. The respondents may place on recordthe amended memo of parties.