Bombay High Court
Ctp Environement S.A.S vs Sentro Technologies Limited And ... on 12 July, 2016
Bench: G.S. Patel
CTP Environment SAS v Sentro Technologies Ltd & Anr.
922-NMS912-913-15-F.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 912 OF 2015
IN
SUIT NO. 1018 OF 2014
WITH
NOTICE OF MOTION NO. 913 OF 2015
CTP ENVIRONMENT S.A.S.,
A company incorporated under the laws of
the French Republic and having its address
at Port de Conflans Fin d'Oise, Le Beaupre
No.4, F-78700, Conflans-Sainte-Honorine,
France ...Plaintiff
-- versus --
1.
SENTRO TECHNOLOGIES
LIMITED
A company incorporated under the
laws of the State of Israel and having
its place of business in India at 22/23,
Jolly Maker Chamber II, 225,
Nariman Point, Mumbai 400 021
2. TALMOR SUCHARD
An adult inhabitant of United States
of America and having his place of
business at 22/23, Jolly Maker
Chamber II, 225, Nariman Point,
Mumbai 400 021 ...Defendants
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922-NMS912-913-15-F.DOC
Appearances
For The Plaintiff Mr. Virag Tulzapurkar, Senior
Advocate, with Mr. Aditya
Thakkar, Mr. Adheesh
Nargolkar & Ms. Smriti
Yadav, i/b Khaitan & Co.
For Defendants Nos. 1 Mr. Kamal Khata, with Ms.
& 2 (Applicants) Deepali Sharma, i/b Win
Law Group.
ig CORAM : G.S. PATEL, J
DATED : 12th July 2016
ORAL JUDGMENT:-
1. This order will dispose of these two Notices of Motion, both
filed by the Defendants. The suit is an action in patent infringement.
2. Notice of Motion No. 912 of 2015 purports to be under Order
VII Rule 10 and Order VII Rule 11, read with Section 51 of the Code
of Civil Procedure, 1908 ("CPC"). Notice of Motion No. 913 of
2015 is more substantial. It seeks recall of two orders dated 10th
October 2014 and 8th January 2015, because, according to the
Defendants, these orders were ex parte orders obtained without
proper notice to the Defendants.
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3. I have heard Mr. Khata for the Defendants and Mr.
Tulzapurkar for the Plaintiff at quite considerable length. With their
assistance, I have considered the material on record.
RE: NOTICE OF MOTION NO. 912 OF 2015
4. In my view, this Notice of Motion is completely misconceived
and not maintainable. The reasons are many. To begin with, the cast
of the prayer is wrong. This being a Chartered High Court, in view
of the provisions of Order 49 Rule 3, there is no question of
rejection of a plaint under Order 7 Rule 10. That Rule does not
apply to the Chartered High Courts. In any case, that Rule is for
return of the plaint and not for rejection of the plaint, which is a
completely different aspect.
5. As regards the relief under Order 7, Rule 11, this too cannot
be maintained. Order 49 also provides that clauses (b) and (c) of
Order 7 Rule 11 have no application to a Chartered High Court. Mr.
Khata places his case emphatically under Order VII Rule 11(d),
saying that it is barred by any law. By this, he means that this Court
does not have the jurisdiction to entertain the Suit. Incidentally, this
is another reason why the application under Order 7 Rule 10 can
never lie, even assuming that that Rule applied to this Court. If the
Defendants' case is that this Court has no jurisdiction because the
Defendants are not in India, then no Court in India has jurisdiction
and there is no question of "returning the plaint for presentation to
the proper Court"; according to the Defendants themselves, there is
simply no other Court in India to which the Plaintiff could go.
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6. In any case, the application under Order 7 Rule 11 must
proceed on a demurrer, i.e., on taking the plaint as it stands. This is
settled law. It cannot be assessed on any convoluted, complicated or
complex process of reasoning. On the plaint, as it stands, there is a
clear case made out showing that the Court has jurisdiction. The
necessary averments are to be found in paragraph 45 of the plaint.
Here, the Plaintiff avers that the 1st Defendant has a place of
business or an office in Mumbai, and the 2nd Defendant's place of
business is also in Mumbai. It is also alleged that the patent
infringement in question took place in Mumbai and, therefore, the
entire cause of action arose within the jurisdiction of this Court.
7. The entirety of the Defendants' case is based on one entirely
incorrect and flawed premise, viz., that it is only the situs of the
Defendants that gives a Court jurisdiction. Even a plain reading of
Section 20 of the CPC indicates otherwise. Here, the case of the
Plaintiff is, in addition to the Defendants' situs, that the cause of
action, i.e., the patent infringement, took place in Mumbai. If this be
so, then this is an additional reason to reject the Defendants' Notice
of Motion. This is a matter not to be gauged on the basis of Replies
and Rejoinders but on the demurrer and on a reading of the plaint as
it stands. In short, what Order 7, Rule 11 of the CPC requires is this:
that the defendant must be able to say, "take the plaint as it stands,
and when you do, you will find that there is no cause of action
against the defendant" and "that this Court in no case has
jurisdiction". It is not possible to hold that the Defendants have
made out any such case.
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8. On a plain reading of the Plaint, therefore, this Court would
have jurisdiction. Notice of Motion No. 912 of 2015 must be
dismissed. It is.
RE: NOTICE OF MOTION NO. 913 OF 2015
9. This Notice of Motion proceeds on the basis that the
Defendants were not served at the time of my ad-interim order of
10th October 2014 or the final order on the Notice of Motion on 8th
January 2015 (Gupte J).
10. First, as to the Defendants. The 2nd Defendant, Mr. Talmor
Suchard ("Suchard"), is an individual. He says that he resides in
California, USA. According to him, the 1st Defendant is a private
limited company headquartered in Israel. He is one of its directors.
Suchard also says that he is a partner of Sentro Technologies LLC, a
firm headquartered in California, USA. Suchard's case is this: he
says that the company Sentro Technologies Limited had no office in
Mumbai at any time. Therefore, in his capacity as a director he was
not present in India at any time. He may have been here in fact, but
that was in some other capacity. The fact that the US firm Sentro
Technologies LLC had an office in Mumbai is irrelevant, since the
US firm is not a party to this litigation. Therefore, according to
Suchard, any material served or left at any Indian address was
service on the US firm, a non-party to this litigation, and cannot be
treated as service on either the 1st Defendant, an Israel company, or
himself, as an individual, since he was not served qua a director of
the 1st Defendant company.
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11. In my view, Suchard is wrong on both counts, and he is most
egregiously wrong. There is a long history to this question of
service. Some of it finds place in my order of 10th October 2014,
paragraphs 2, 3 and 4 in particular:
"2. An affidavit of service has been filed as has an
additional affidavit dated 8th October 2014. Before I
consider the case made out in the plaint, it is necessary
to set out certain events relating to service. When the
suit was filed, the Plaintiff believed that the Defendants
had their office at 22/23 Jolly Maker Chamber II, 225,
Nariman Point, Mumbai 400 021. On 1st October 2014,
the Managing Clerk of the Plaintiff's attorneys went to
this address to serve the Defendants. He was informed
that the Defendants had shifted from there. The 1st
Defendant's website was checked and it was found that
the Defendants had an address at 84, Arcadia, 195
Nariman Point, Mumbai 400 021. The Plaintiff then
attempted to give notice to the Defendants at the
second address at Arcadia. When the Plaintiff's
attorneys' Managing Clerk went to that address, he was
informed that there was no company by the name of
the 1st Defendant and no person by the name of the
2nd Defendant with an office in that building.
3. Consequently, on 6th October 2014, the Plaintiff's
attorneys served a scanbed copy of the letter with
attachments by email to the 1st Defendant at the
address provided on the 1st Defendant's website. A
copy was marked to the email address of the 2nd
Defendant. Copies of these emails are dated 6th
October 2014 are attached to the affidavit proving
service. The notice of 6th October 2014 was for an
application to be made on 7th October 2014. However
since 6th October was declared as a public holiday and
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the Court was closed, and since this declaration was
made only on 4th October 2014, the Plaintiff was unable
to move on 7th October 2014. The Plaintiff has
accordingly given fresh notice by email of the
application being made today.
4. A further additional affidavit dated 8th October
2014 is also filed. In this affidavit, the Plaintiff have said
that when their attorneys' Managing Clerk went to the
Arcadia office premises he found that there was only a
company named Marshall Integrated Private Limited at
that address. Neither of the Defendants had their office
there. The Plaintiff has since checked the website of
Marshall Integrated Private Limited and found that it
claims to represent one Mr. Lior Suchard. It appears
that this person is none but the brother of the 2nd
Defendant. It is in these circumstances that the Plaintiff
has made the additional affidavit, inter alia contending
that Marshall Integrated Private Limited, prima facie is
shown to have a nexus with the Defendants.
12. At the risk of going forward abruptly in time, it would be
convenient to note also that matters did not stop there. By his order
dated 25th November 2014, Mr. Justice S.C. Gupte directed the
Plaintiff to effect substituted service. On 16th December 2014, that
matter was taken up on mentioning. None appeared for the
Defendants on that day. Gupte J placed the matter on 8th January
2015. On that day, by a brief order, noting that none represented the
Defendants, he made the Notice of Motion absolute in terms of
prayer clause (a).
13. These Notices of Motions were only filed six months later,
some time in June 2015. Mr. Tulzapurkar has now placed before me
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a compilation of five Affidavits, all relating to service. These are
Affidavits dated 8th October 2014 of one Mr. Santosh Shelar, 8th
October 2014 of one Mr. Swetal Bhandari, 13th October 2014 again
by Mr. Santosh Shelar, 14th November 2014 of Mr. Santosh Shelar,
and finally 15th December 2014 again by Mr. Santosh Shelar,
proving substituted service.
RE: SERVICE AND THE 10TH October 2014 ORDER
14. At the time when the Suit was filed, the Plaintiff believed that
the Defendants had their office at 22/23, Jolly Maker Chamber II,
225, Nariman Point, Mumbai 400 021. Mr. Tulzapurkar points out
that this is the address that was shown on the website at the URL
http://www.sentro-tech.com. On 1st October 2014 when service
was attempted there, the Plaintiff was informed that the Defendants
had shifted office. The Plaintiff checked the Defendants' website
and at the same URL found another address at 84, Arcadia, 195,
Nariman Point, Mumbai 400 021.1 When the Plaintiff attempted
service at this address, it was informed that neither of the
Defendants were in that building. At that address, they found
another company called Marshall Integrated Private Limited
("MIPL"). This company will play a quite significant role in the
further developments in this matter.
15. It later transpired that MIPL is a company in which the 2nd
Defendant's brother, one Lior Suchard, apparently a performing
1 Notice of Motion paperbook, p. 64.
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"mentalist" in Mumbai, has an interest. I am given to understand
that this means he is some sort of magician or performer given to
demonstrating feats of mind-reading and other such displays of
apparently extraordinary mental prowess. That does not seem to
have helped the Defendants in the least; for the record shows that
there were at least two minds that went totally unread.
16. So: what we have, therefore, is that the Arcadia address was
shown at the Sentro Tech website; at that physical address, only
MIPL was to be found; and Suchard's mentalist sibling has an
association with MIPL.
17. A question, therefore, directly arose in these very proceedings
about the identity of the registrant of the domain name sentro-
tech.com. There is material before me to indicate that the
Defendants attempted to conceal or hide the details of the true
registrant of this domain name; that matters little, since it is a very
difficult business to obscure digital footprints, even with a mentalist
in the family. The Plaintiff filed a subsequent Notice of Motion No.
1440 of 2016. I passed an order on that Motion on 17th June 2016.
Prayer (c) of that Notice of Motion demanded a disclosure by the
domain name registrar, domainsbyproxy.com, of the registrant of
this domain name. That domain name registrar filed an affidavit. It
is part of the record. It shows in no uncertain terms that the
registrant of that domain is none other than Suchard himself.
18. Therefore, to return to the summation in its next iteration:
the Sentro Tech website showed the Arcadia address; the Sentro
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Tech website is now known to be registered to Suchard; at that
physical address, only MIPL was found; and Suchard's sibling is
associated with MIPL.
19. From the documents annexed to the Affidavit in Reply and
the Affidavit in Rejoinder, it is not possible to tell whether the
website at www.sentro-tech.com is limited to the 2nd Defendant or
to the US firm (Sentro Technologies LLC) or both, or whether it
includes the 1st Defendant Company. It certainly mentions an office
in India. It also mentions an email address at which Sentro
Technologies may be contacted. The Plaintiff served the Defendants
at that email address as well.
20. Mr. Tulzapurkar also points to another page from a business
profile.2 It refers to Sentro Technologies Limited, obviously the 1st
Defendant. It carries the same logo that appears on the webpages to
which I referred earlier, and it refers generically to Sentro
Technologies. What is interesting is that it lists the 1st Defendant's
website as being at www.sentro-tech.com, the very URL of which
Suchard is personally the registrant and which Suchard claims is the
URL of the US firm. What we now have, therefore, in addition to
the previous factual array is that both the 1st Defendant Company
and the US firm, at a minimum, share the same URL and website,
under a domain name registered to Suchard, the 2nd Defendant.
21. It is impossible to accept Mr. Khata's argument that since
Suchard is a Director of the 1st Defendant, and the 1st Defendant
2 Notice of Motion paperbook, Exhibit "Q6", p. 101.
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has no office in India, therefore, the 2nd Defendant must also "be
deemed never to have been in India". This is more or less the
substance of what is stated in paragraph F(ii) of the Affidavit in
Support of the present Notice of Motion. In Rejoinder, this
argument is taken to an even higher level in paragraphs 6 and 13,
which read thus:
"6. I say that the service of notice and proceedings
could not be effected as the same were misdirected. I
say that we did not receive the letter nor the
proceedings because of the following:
i)
That Defendant No. 1 does not have any
address in India;
ii) That I (Defendant No. 2) was not served in
my personal name at any address in USA
(also known to the Plaintiff);
iii) The said addresses at which the Plaintiff
sought to effect service were the
addresses of another Company (which is
not a party to the present proceedings);
iv) The Defendant No. 1 does not have a web
address;
v) The address at which the Plaintiff sought
to serve was the address of the USA
Company (which is not a party to the
present proceedings)
I therefore say that neither did I have any knowledge
of the proceedings nor was I served and the entire
service was misdirected.
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13. With reference to paragraph 6(b), I repeat,
reiterate and confirm all that is stated herein above
with regard to service and deny all that is contrary
thereto and inconsistent therewith. It is denied that the
website www.sentro-tech.com belongs to the
Defendant No. 1 and thus the information hosted
thereat cannot be attributed to Defendant No. 1. I
repeat and reiterate that at no point of time did the
Defendant No. 1 had a place of business in Mumbai. I
state that I have been impleaded as a
promoter/Director of Defendant No. 1 and thus, I also
have no place of business."
ig (Emphasis added)
22. Paragraph 6 is deliberately misleading; and to say that the 1st
Defendant does not have a website is, as we have seen, entirely false.
There is, too, the wilful suppression of the domain name
registration information. Paragraph 13 is the purest chicanery, with
Suchard claiming that he must be served in his capacity as a director
of the 1st Defendant; and that if the 1st Defendant has no office here
then he, as its director, does not either -- notwithstanding that he
might himself actually be doing business in India. These statements
are of the stripe that are sufficient to dismiss the Motion with
nothing further.3
3 SP Chengalvaraya Naidu v Jagannath & Ors., (1994) 1 SCC 1; Ashok
Leyland Ltd. v State of Tamil Nadu and Anr., (2004) 3 SCC 1; A.V.
Papayya Sastry and Ors. v Government of A.P. and Ors., (2007) 4 SCC
221; Dalip Singh v State of U.P. and Ors., (2010) 2 SCC 114; Oswal Fats
and Oils Limited v Additional Commissioner (Administration), Bareilly
Division, Bareilly and Ors., (2010) 4 SCC 728; Hari Narain v Badri Das,
[1964] 2 SCR 203; Rajabhai Abdul Rehman Munshi v Vasudev Dhanjibhai
Mody, [1964] 3 SCR 481.
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23. Further, the extracted paragraphs are directly contrary to
paragraph 12 of the Rejoinder,4 where the 1st Defendant admits that
one Mr. Shay, a Project Manager, received a notice from the Plaintiff
in June 2014. The 2nd Defendant alleges that Shay resigned on 1st
October 2014. But this must necessarily mean that the 1st
Defendant company did have an office in Mumbai in June 2014; and
the statement in paragraph 6(i) of the Rejoinder is, therefore, clearly
false.
24. There is also the question of whether the Defendants have
any credibility at all. I will leave aside all questions about the patent
itself. There is, however, one statement in the Affidavit in Rejoinder
that is a telling, if inadvertent, admission, and this is in paragraph 4,
where the 2nd Defendant admits that apart from him there are two
other companies that provide online cleaning services in India. This
means that the 2nd Defendant also does business in India. That is
enough for the purposes of jurisdiction.
25. In paragraph G(iii) of the Affidavit in support, page 20, the
2nd Defendant claims that he has nothing whatever to do with
MIPL in Mumbai. This statement is demonstrably incorrect. The
Plaintiff applied for the appointment of a Court Receiver to make a
site inspection of the refinery of Essar Oil at Jamnagar. I allowed
that application by an order dated 1st October 2015. The Court
Receiver was also directed to visit, importantly, a guest house near
that refinery. When he did so, the Court Receiver's representative
found that not only the 2nd Defendant but others who are
4 Notice of Motion paperbook, pp. 122-123.
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associated with Sentro Technologies LLC in California had visited
that very guest house. A copy of the address of the visitors' log was
annexed to that report. This showed the name of the 2nd
Defendant, one Samuel Marshall, and two others. All of them were
shown as having an Indian address as "Sentro/MIPL Mumbai". All
were said to have arrived at Jamnagar from Mumbai on official work.
26. Mr. Khata's argument also overlooks the provisions of Order
29 Rule 2 of the CPC. Service on a corporation, and the 1st
Defendant is one, may be effected by service on the
secretary/director or other principal officer or by leaving it or
sending it by post addressed to the corporation at its registered
office, or if there is no registered office, then at the place where the
corporation carries on business. This is unambiguous. On its own
showing, the 1st Defendant had an address in Mumbai. The 2nd
Defendant certainly did. He was served in Mumbai.
27. Mr. Tulzapurkar also points out that following the order
passed by Gupte J, the Plaintiff completed substituted service.
Order 5, Rule 20 of the CPC deals with this. Sub-rule (2) clearly
provides that service substituted by an order of a Court is as
effectual as if it had been made on the defendant personally.
28. Thus, viewed from any perspective, the 2nd Defendant, who
certainly has business in India and a place of business in Mumbai, is
deemed to have been served. On account of the substituted service,
the 1st Defendant is duly served as well.
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29. It is impossible to hold that the orders of 10th October 2014
or 8th January 2015 were ex parte orders obtained without notice. I
believe Mr. Tulzapurkar is also correct in pointing out that the
Defendants waited for six months between January and June 2015 to
move this Notice of Motion because they were, during that time,
trying to take whatever steps they could to obscure the registration
information of the Sentro Technologies website.
30. I have not, as I have said, dealt with the merits of the main
application for injunction. The reason is that the Plaintiff's Notice
of Motion has already been made absolute. Mr. Khata is not now at
liberty to agitate the merits because of the final order making that
Notice of Motion absolute. He may certainly take the contentions in
any written statement that the Defendants choose to file.
31. Before concluding, I must note that there is some controversy
about whether the Defendants have filed Affidavit in Rejoinder
dated 23rd September 2015. A copy has been served on the Plaintiff.
However, there is no trace of it in the Court record, nor am I able to
find it. A copy has been given to me by the Advocates for the
Defendants. This is taken on record, endorsed by the Court
Associate with today's date and placed with the papers in Notice of
Motion No. 913 of 2015.
32. Notice of Motion No. 913 of 2015 is also dismissed. There
will be no order as to costs.
(G. S. PATEL, J.)
12th July 2016
