Delhi High Court
M/S S.P. Infra Networks vs M/S Bharti Airtel Ltd on 12 March, 2013
Author: Manmohan
10
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2289/2010
M/S S.P. INFRA NETWORKS ..... Plaintiff
Through: Mr. Purshotam Singh, Advocate.
versus
M/S BHARTI AIRTEL LTD ..... Defendant
Through: Ms. Jyoti Mendiratta, Advocate.
% Date of Decision: 12th March, 2013
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
I.A. 7605/2011 in CS(OS) 2289/2010
1. Present application has been filed by the defendant under Order 7
Rule 11 CPC for rejection of the present plaint.
2. Present application is based on three arguments. Firstly, after the
demerger of Bharti Airtel Limited, the plaintiff should have filed the suit
against the demerged company Bharti Infratel Limited and not against the
present defendant.
3. It is also stated that this Court has no territorial jurisdiction as the
plaintiff had itself raised an invoice against Bharti Infratel Limited at Plot
No.493, Scheme-1, Mangal Pandey Nagar, University Road, Meerut (U.P.).
4. It is further stated that the present suit is barred by limitation as the
services provided by the plaintiff were for the period 16th August, 2007 to
31st August, 2007 and the alleged invoice had been raised on 10th
September, 2007, whereas the present suit had been filed on 18th October,
2010.
5. In reply, learned counsel for plaintiff has referred to the Letter of
Indent dated 26th July, 2006 issued by M/s. Bharti Airtel Limited having its
registered office at D-185-C, 1st Floor, Okhla Industrial Area Phase-1, New
Delhi-110020 to show that this Court has territorial jurisdiction.
6. He has also drawn this Court's attention to Clause 4.2 of the
Demerger Scheme sanctioned by this Court wherein it has been observed as
under:-
"4.2 LEGAL PROCEEDINGS
4.2.1. All legal proceedings of whatsoever nature by or against
the Transferor Company pending and/or arising before the
Effective Date and relating to Telecom Infrastructure
undertaking, shall not abate or be discontinued or be in any
way prejudicially affected by reason of the Scheme or by
anything contained in the Scheme but shall be continued and
enforced by or against the Transferee Company, as the case
may be in the same manner and to the same extent as would or
might have been continued and enforced by or against the
Transferor Company.
4.2.2. After the Effective Date, if any proceedings are taken
against the Transferor Company in respect of the matters
referred to in sub-clause 4.2.1 above, the Transferor Company
shall defend the same at the cost of the Transferee Company,
and the Transferee Company shall reimburse and indemnify the
Transferor Company against all liabilities and obligations
incurred by the Transferor Company in respect thereof.
4.2.3. The Transferee Company undertakes to have all legal or
other proceedings initiated by or against the Transferor
Company referred to in Clauses 4.2.1. or 4.2.2 above
transferred into its name and to have the same continued,
prosecuted and enforced by or against the Transferee Company
as the case may be, to the exclusion of the Transferor
Company."
7. Learned counsel for plaintiff has further drawn this Court's attention
to the Note of Approval dated 09th September, 2009 duly signed by officers
of the defendant company to contend that the suit is within limitation.
8. In rejoinder, learned counsel for defendant states that officers who
had signed the Note for Approval dated 09 th September, 2009 are not the
officers of the defendant company.
9. Having heard the learned counsel for parties, this Court is of the view
that this Court has the territorial jurisdiction to entertain the present suit as
the registered offices of both Bharti Airtel Limited and Bharti Infratel
Limited are situated within the jurisdiction of this Court. It is pertinent to
mention that the Scheme for Demerger between the Transferor and
Transferee Companies was sanctioned only by this Court and not by any
other High Court.
10. Just because an invoice has been raised by the plaintiff mentioning the
U.P. address of the defendant does not mean that this Court does not have
the jurisdiction to entertain the present suit, especially when registered
offices of both the Transferor and Transferee companies are situated in
Delhi.
11. This Court is also prima facie of the view that in view of the Note for
Approval dated 09th September, 2009, the present suit is within limitation as
it was filed on 18th October, 2010. In any event, as the validity of the said
Note for Approval has been disputed by the defendant, this Court is of the
view that the issue of limitation is a mixed question of fact and law and
cannot be decided without conducting a trial.
12. However, as far as the submission that the present suit is liable to be
dismissed on ground of mis-joinder of Bharti Airtel Limited is concerned,
this Court is of the opinion that in view of Clauses 4.2.1. and 4.2.3 of the
Scheme of Demerger, the onus was on Bharti Infratel Limited to get itself
impleaded in the present proceedings.
13. Clause 4.2.1. of the Scheme of Demerger specifically stipulates that
no legal proceeding filed against Bharti Airtel Limited shall be prejudicially
affected by reason of the Scheme of Demerger. This Court is of the view
that defendant and Bharti Infratel Limited having got the Scheme for
Arrangement sanctioned on such an assurance and undertaking, cannot be
allowed to make premium out of the Scheme of Arrangement.
14. Consequently, present application being frivolous, is dismissed with
costs of Rs.50,000/- to be paid to the learned counsel for plaintiff within a
period of four weeks.
CS(OS) 2289/2010
List the matter before Joint Registrar on 02nd July, 2013 for
completion of pleadings and admission /denial of documents.
MANMOHAN, J
MARCH 12, 2013
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