Radhika Mehta vs Panasonic India Pvt. Ltd.
2012 Latest Caselaw 783 Del

.*        HIGH COURT OF DELHI: NEW DELHI

                                                         Order decided on: 06.02.2012

+      I.A. Nos.13107/10 & 9068/11 in CS (OS) No.2314 of 2009


       RADHIKA MEHTA                                              ..... Plaintiff
                   Through                     Mr. Sandeep Sethi, Sr. Adv. With
                                               Mr. Angad Mehta and Mr. Virendra
                                               Singh Thajur, Advs.


                       versus


       PANASONIC INDIA PVT. LTD.               ..... Defendant
                    Through   Mr. Anil K. Kher, Sr. Adv. with
                              Mr. Siddhartha Jain, Adv. for D-1.
                              Mr. P.K. Mittal, Adv. for proposed
                              defendant.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I shall dispose of the two applications filed by the plaintiff in the instant suit for permanent injunction and damages against the defendant restraining the defendant from dealing with or making suppliers of „Lumix‟ range of digital still cameras and „E-Cam‟ range of Digital Video cameras in India to any third parties.

2. I.A. No.13107/2010 has been filed by the plaintiff under Order I Rule 10 CPC seeking permission of this court to implead Panasonic Consumer

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.1 of 10 India Pvt. Ltd. as defendant No.2 in this suit and take the amended memo of parties on record. It is stated in the application that the said Panasonic Consumer India Pvt. Ltd. is a subsidiary and Group Company of the Panasonic Group. It is also stated that on searching the records of the Registrar of Companies, the plaintiff discovered that in the year 2007, there were two Companies namely Panasonic India Pvt. Ltd. and Panasonic Sales and Services India Pvt. Ltd. and both of these were Panasonic Companies. Thereafter, in 2008, the name of Panasonic India Pvt. Ltd. was changed to Panasonic Consumer India Pvt. Ltd. and the name of Panasonic Sales and Services India Pvt. Ltd. was changed to Panasonic India Pvt. Ltd. Thus, the plaintiff has sought to implead Panasonic Consumer India Pvt. Ltd. as a necessary and proper party for adjudication of the instant suit.

3. The defendant has raised objections to this application of the plaintiff and stated that the plaintiff has not disclosed as to how and why the impleadment of Panasonic Consumer India Pvt. Ltd. is necessary for the purpose of determining the issues in the present suit. It is also stated by the defendant that Panasonic Consumer Services India Pvt. Ltd. has never dealt with the plaintiff therefore, the present application is meritless. However, if, the grievances of the plaintiff are against Panasonic Consumer Services India Pvt. Ltd. then the instant suit of the plaintiff against the defendant be dismissed.

4. During the pendency of first application, the plaintiff has filed another application being I.A. No.9068 of 2011 under Order VI Rule 17 read with Section 151 of CPC whereby, she is seeking amendment of the plaint, so as to bring on record, Panasonic Consumer India Pvt. Ltd. and also seeks relief

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.2 of 10 against Panasonic Consumer India Pvt. Ltd. as well and wants to add the following paras to the plaint and in the relief clause:

"43A. That subsequent to the filing of the Plaint, in their Written Statement, the Defendant Company has contended that that it was incorporated in 2004 as Panasonic Sales and Services India Pvt. Ltd. and continued to be known as Panasonic Sales and Services India Pvt. Ltd. till2008, when its name was changed to its current name i.e. Panasonic India Pvt. Ltd. Hence, it was implied by the Defendant that the letters of September/October 2007 were forged and fabricated by the Plaintiff/Applicant.

43B. That consequently, the plaintiff/applicant caused a search in the records of the ROC and discovered that:

(i) In 2007, there were two Companies existing namely, Panasonic India Pvt. Ltd. and Panasonic Sales and Services India Pvt. Ltd. Both these Companies were Panasonic Group Companies;

(ii) As a part of an internal re-arrangement in 2008, the name of Panasonic India Pvt. Ltd. was changed into Panasonic Sales and Services India Pvt. Ltd. was changed to Panasonic India Pvt. Ltd.

(iii) Thus what was Panasonic India Pvt. Ltd. in 2007, is now Panasonic Consumer India Pvt. Ltd.; and what was Panasonic Sales and Services India Pvt. Ltd. in 2007, is now Panasonic India Pvt. Ltd.

43C. That the plaintiff was not aware of the facts, the plaintiff has had continued business dealings with the Panasonic group including Panasonic India Pvt. Ltd. In fact, the letters that have been received by the plaintiff, and which are on record, are also on the letterhead of Panasonic India Pvt. Ltd. It is important to note that Mr. Srikrishna Kulkarni, who signed the letter in question, was heading both these Companies.

43D. The said Panasonic Consumer India Pvt. Ltd. is a subsidiary and Group Companies of the Panasonic Group and as the letter were on the letter head of the Company that is now

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.3 of 10 Panasonic Consumer India Pvt. Ltd. is a necessary and proper party to the suit. So is the existing Defendant in as much it has been dealing with the Plaintiff and has been misusing its proprietary information in the form of inter alia, the dealer lists. As stated that Mr. Srikrishna Kulkarni, who signed the letter in question was heading both these companies.

43E. That Panasonic India Pvt. Ltd. and Panasonic Consumer India Pvt. Ltd. are group companies and due to the change in name of the Companies, it is necessary to array Panasonic Consumer India Pvt. Ltd. as defendant No.2 in the plaint.

43F. That in the circumstances, it is also necessary to amend the Memo of Parties and implead Panasonic Consumer India Pvt. Ltd. as defendant No.2."

"Prayer:

(aa) Pass a decree in favour of the Plaintiff against Defendant No.2 in the sum of Rs. 10 crore being the damages payable by the Defendant to the Plaintiff;

(bb) Pass a decree of Permanent Injunction in favour of the Plaintiffs and against Defendant No.2, restraining defendant No.2, it servants, officers, employees, agents, dealers, re-sellers, or distributors from dealing with or making supply of „Limux‟ range of Digital Still cameras and „E-cam‟ range of Digital video Cameras in India to any third parties;

(cc) Pass a decree of Permanent Injunction in favour of the Plaintiffs and against Defendant No.2, restraining Defendnat No.2, it servants, officers, employees, agents, dealers, re-sellers, or distributors from in any manner dealing with the dealers/distributors as detailed in Annexure A tot eh Plaint and from supplying any goods to the said dealers/distributors: : (ee) Pass any such order, as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.4 of 10

5. The defendant in its reply to the instant application also has raised similar objections as in its reply to I.A. No.13107/2010 stating that Panasonic Consumer India Pvt. Ltd. has never dealt with the plaintiff and, if, the grievances of the plaintiff are against Panasonic Consumer Services India Pvt. Ltd. then the instant suit of the plaintiff against the defendant be dismissed. The defendant has also stated that as I.A. No.13107/2010 of the plaintiff is pending, therefore, this application is pre-mature, and hence, it is liable to be dismissed.

6. Similar points have been raised in the reply filed by proposed defendant No.2. The contention of the said defendant is that letters dated 04.10.2007 and 09.10.2007 which according to the plaintiff were written by Mr. Kulkarni to him confirming the terms and conditions of the agreement arrived at are false and fabricated and could not have been written by him. In nut-shell, it is stated by both defendants that the plaintiff has obtained said letters dated 04.10.2009 and 09.10.2007 from him after his resignation from the company and both the applications are false and frivolous and are liable to be dismissed.

7. As per the submission of the defendant, Mr. Kulkarni who allegedly wrote two letters dated 04.10.2007 and 09.10.2007 on behalf of the defendant confirming and re-confirming the terms and conditions of settlement with the plaintiff was, at the first instance, appointed as Chief Strategy Officer of Panasonic India Pvt. Ltd. on 02.09.2004. With effect from 01.05.2005 he was appointed as Director of the company. On 01.07.2005 Mr. Kulkarni was appointed as the Managing Director of the company. On 30.11.2006 he resigned from the defendant company at New

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.5 of 10 Delhi. The name of the above-mentioned company, as per the case of the defendant, was changed to Panasonic Consumer India Pvt. Ltd. on 24.09.2008 which is proposed to be impleaded as defendant No.2 in the present case.

8. Mr. Anil Kher, learned Senior counsel appearing on behalf of defendant No.1 states that the two companies with the same name, i.e. Panasonic Sales and Service India Pvt. Ltd at Chennai and Panasonic India Pvt. Ltd. at New Delhi are distinct companies, although some of the Directors might be common. He states that the plaintiff in the present case has only dealt in her business with Panasonic Sales and Service India Pvt. Ltd., the name of which has been changed to Panasonic India Pvt. Ltd. with effect from 03.10.2008.

9. The learned counsel for both the parties have handed over the small note regarding the dates and the details of the change of names of the companies and addresses of the defendant from time to time as per record maintained by the Registrar of Companies. In order to understand the same, it is necessary to mention the following details thereof :

a) Panasonic India Pvt. Ltd.

This company was incorporated in the year 1994. It has registered office at New Delhi, the address of which was changed from time to time. The details of the same are mentioned as under:-

01.04.1999 to 30.04.2004:

AB-11, Safdarjung Enclave, Community Center, New Delhi-110029. 01.05.2004 to 31.10.2005:

2nd Floor, Wadhwa House, G-11, Hauz Khas, New Delhi-110016.

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.6 of 10 01.11.2005 to 31.08.2006 1506-07, 15th Floor, Devika Tower, Nehru Place, New Delhi-110019. 01.09.2006 to 31.10.2008 C-37, Connaught Place, New Delhi-110001.

01.11.2008 - till date:

K-39, Connaught Place, New Delhi-11001.

According to the defendant the name of this company was changed to Panasonic Consumer India Pvt. Ltd.

Mr. Kher, learned Senior counsel appearing on behalf of defendant has argued that the plaintiff has never carried out any business with the above said company and no business whatsoever was carried out by this company with the plaintiff.

b) Panasonic Sales and Service India Pvt. Ltd.

This company was incorporated on 14.07.2006. Its registered office is at 6th Floor, SPIC Building, "Annexe", No.88, Mount Road, Guindy, Chennai-600032. The defendant‟s case is that the plaintiff did her business only with this company. The name of this company was changed to Panasonic India Pvt. Ltd. at the same address, i.e. 6 th Floor, SPIC Building, "Annexe", No.88, Mount Road, Guindy, Chennai-600032 with effect from 03.10.2008.

It is submitted that Mr. Kulkarni was the Managing Director of this company since inception. On 24.07.2008, he was removed as Managing Director and was merely a Director of the company. He resigned from the services of this company on 31.08.2009.

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.7 of 10

10. Mr. Kher has argued that since Mr. Kulkarni had resigned from Panasonic India Pvt. Ltd., New Delhi company on 30.11.2006, he could not have signed the letters dated 04.10.2007 and 09.10.2007 on behalf of defendant company.

11. One thing is very clear from the record of the case that when the alleged letters dated 04.10.2007 and 09.10.2007 were issued by Mr. Kulkarni, he was the Managing Director of the company at Chennai. It is yet to be established whether he has written these letters or not at the appropriate time the same were obtained by the plaintiff later on after his retirement. These points are yet to be established at the time of trial. The plaintiff who has sought the amendment in the plaint as well as impleadment of Panasonic Consumer India Pvt. Ltd. (as defendant No.2) has given the comprehensive details in the proposed paras 43A to 43F in the present application as well as in the amended plaint.

12. The main thrust of the plaintiff‟s case is that the two letters for confirmation and re-confirmation for the terms and conditions of the settlement were issued by Mr. Kulkarni when he was in the service of the defendant at the relevant time from 2005 to 30.11.2006 the Director/Managing Director of Panasonic India Pvt. Ltd. at New Delhi and also was the Managing Director of the company, Panasonic Sales & Service India Pvt. Ltd. which later on became Panasonic India Pvt. Ltd. at Chennai with effect from 03.10.2008. It also appears from the documents that there is some evidence on record that Panasonic India Pvt. Ltd. (Consumer Sales Division) had been corresponding with the plaintiff from Gurgaon office and

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.8 of 10 letter-head also shows same address of the registered office at Chennai in the year 2009.

13. The learned Senior counsel for the defendant has admitted that it might be possible that some of the Directors were common in both the companies at the relevant time. However, he submits that both the companies are distinct and they are now independently carrying on their business. At this stage, it is not for the Court to decide the merits of the case. The objections and submissions on merit raised by both the parties are yet to be gone into which would have to be decided at the time of the trial. As far as the present suit is concerned, since there was/is some connection in between the two companies in Delhi as well as in Chennai with the plaintiff as some evidence is available on record, therefore, it would be appropriate that the prayer sought by the plaintiff in both the applications should be allowed. As regards all the objections of the defendant, the same could be raised by the defendants in the amended written statement and the same would be considered at appropriate stage. In case, it is found ultimately that any of the companies is not a necessary party, it would be considered by the court after completion of the pleadings by deletion in accordance with law. But, at this stage, the amendment sought by the plaintiff cannot be disallowed. Hence both the applications are accordingly allowed. The amended memo of parties and the amended plaint filed by the plaintiff are taken on record.

14. The applications are disposed of.

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.9 of 10 CS(OS) No.2314/2009

Let the written statement to the amended plaint be filed by the defendants within four weeks from today. Replication, if any, be filed within three weeks thereafter.

List the matter before the Joint Registrar on 09.05.2012 for admission/denial of the documents. Thereafter, the same shall be listed before the Court on 11.07.2012 for framing of issues as well as directions for trial.

MANMOHAN SINGH, J.

FEBRUARY 06, 2012

I.A. Nos.131076/2010& 9068/2011 in CS(OS) No.2314/2009 Page No.10 of 10