Perpetuuiti Technosoft Service ... vs Sanovi Technologies (India) Pvt ...
2014 Latest Caselaw 6084 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Order delivered on: 24th November, 2014

+              I.A. No.13122/2013 in CS(OS) No.1618/2013

       PERPETUUITI TECHNOSOFT SERVICE PVT LTD ..... Plaintiff
                    Through Mr.C.M.Lall, Adv. with
                            Ms.Nancy Roy, Adv.


                           versus


       SANOVI TECHNOLOGIES (INIDA) PVT LTD & ANOTHER
                                               ..... Defendants
                   Through Mrs.Prathiba M. Singh, Sr. Adv.
                             with Mr.Vaibhav Vutts, Advs.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide the abovementioned pending application being I.A. No.13122/2013 filed by the applicant/plaintiff under Order XXXIX Rules 1 & 2 read with Section 151 CPC.

2. The present suit has been filed by the plaintiff against defendants for damages for tortuous acts of unlawful interference with contracts and business relations worth Rs. 1 crore and permanent injunction restraining defendants from sending letters/notices to the clients and potential clients of the plaintiff.

3. Brief facts of the case are that the plaintiff, a company incorporated in March, 2011 is involved in the IT business with its present focus on Disaster Recovery Management Software Products. In s short period, plaintiff has positioned itself as an emerging leader in this field. To market its products, plaintiff has limited number of clients to whom the products are licensed in India and abroad, like IBM, Tata Consultancy Services, Wipro, Trimax etc.

4. It has been stated that these clients are created after great deal of efforts of convincing on quality and other characteristics of the products. The plaintiff considers these clients as highly sensitive to product functioning, product features and credibility of product/license provider and any shortfall, limitation or wrong can jeopardise the business commercials with these clients thereby causing huge losses.

5. The six monthly audited sales for April- September, 2011 to October- March, 2013 are given in Para 7 of the plaint of which the sales for October- March,2013 is stated to be Rs. 945,35,747/-.

6. Defendant No.1 was incorporated in 1999 and is involved in the business of providing 'IT Disaster Recovery Management Software' products and defendant No.2 is the President, Sales of defendant No.1.

7. There is another suit pending between the parties before this Court being CS (OS) no. 1076/2011 which has been filed by the defendant No.1 for infringement and violation of copyrights in

Dashboard and the plaintiff has been impleaded recently as one of the defendants therein.

8. It is averred by the plaintiff that plaintiff in short period became great success and a threat to their foremost competitor, the defendant herein, so the defendant moved an application for impleadment of the plaintiff in the suit for infringement only after about 2 years of filing the said suit on false and flimsy grounds.

9. In the said suit this Court vide an ex-parte ad interim order dated 6th May, 2011 had restrained the defendants therein from selling or offering to sell, or doing any act that infringes the plaintiffs' therein (defendant's herein) copyrights in artistic and literary works including computer program comprised in (but not limited to) its operational dashboard, or from doing anything to pass of the goods of the defendants as the goods of the plaintiff therein. However, vide order dated 2nd June, 2011, this Court observed that "The learned counsel for the defendants, on instructions, states that the defendants have neither infringed the software and dashboard of the plaintiff nor do they have any intention to use the dashboard shown in Para 24 at page 47 of the plaint or the software of the plaintiff in future. In view of the statement made by the defendants, it is clarified that the defendants are entitled to use any dashboard or software which will not infringe the software and dashboard of the plaintiff." Vide order dated 22nd December, 2011 this Court observed that "It is agreed between counsel for the parties that the order dated 6.5.2011

read with the order dated 2.6.2011 be confirmed till the disposal of the suit. Ordered accordingly."

10. In view of the above, it is argued by the plaintiff herein that there is no restrain order of any kind, nor any infringement is established and the issues are still to be determined. However, the defendants have been resorting to unethical business practices. They have in series of their communication to number of plaintiff's clients communicated frivolous, vexes and mischievous communication, through various modes, to defame and demine the plaintiff, so as to hurt and injure the goodwill and reputation that the plaintiff built over a short time span of about 2 years.

11. The defendants has largely only one product (largely non- working) from the last ten years of their existence and still struggling to make the product work, whereas the plaintiff has five products which are successfully running across Enterprise customers, these details are displayed at the plaintiff's website at www.ptechnosoft.com.

12. Defendant in one of its communications to plaintiff's most valuable client IBM stated that an investigation by conducted regarding disproportionate orders to the one Indian company Technosoft (plaintiff herein). Technosoft has taken over liabilities of one Indian company Perpetuiti which has been restrained by Delhi High Court from selling/using any software that infringes the software of the defendant herein. Hence the Court orders operate against

Technosoft as well. The said communication has been reproduced herein below:-

"We address this communication on behalf of our clients, Sanovi Technologies Private Limited ["SANOVI"] out of concern as your partner, to highlight and with a request to conduct an investigation regarding disproportionate orders to our Indian company- Perpetuiti Technosoft Services Pvt. Ltd ("Technosoft"), bulk of orders that Sanovi believes originates from IBM, India.

This Technosoft has taken over the liabilities, including court proceedings, of one Indian company Perpetuiti Technologies Pvt. Ltd. ("Perpetuiti"). Perpetuiti has been restrained by Delhi High Courts, India from using/selling any software that infringes the software of Sanovi. Hence the Court orders operate against Technosoft as well."

13. It is averred by the plaintiff that this has been done by the defendant with the intention of displacing the plaintiff and with an attempt to replace it. The "request to conduct an investigation regarding disproportionate orders to plaintiff" is a clear indicator of defendant's nervousness about the plaintiff's growing business and is an attempt to confuse its valuable client so as to displace the plaintiff. Further the above mentioned communication indicates as if the Perpetuiti and Technosoft are one single establishment, where as they both are independent incorporated companies and have no relations, except that the plaintiff did take over the intellectual properties related to one product and also the liabilities in relation to the unpaid salaries to the employees of the Perpetuiti Technologies Pvt. Ltd. when Perpetuiti Technologies was on verge of collapse in February, 2011. Plaintiff also denies of having taken over any such

liabilities as alleged by the defendant. It is alleged that such misrepresentation is made by the defendant only to prevent the business coming in plaintiff's way and take away the contractually signed business from the clients such as IBM.

14. Defendants have been circulating Notice to plaintiff's clients and potential clients with "information regarding infringement suit between Sanovi Technologies (India) private Limited Vs Perpetuity Technology Private Ltd." with an intend to spread anxiety and fear in the mind of existing and potential customer so as to promote the defendants. Defendants have no right to circulate statements like "therefore, the usage of any software of Perpetuity Technology Private Limited is entirely at your own risk and expense".

15. The defendants are indulging in false propaganda and negative marketing against the plaintiff by writing to various potential clients directly and informing them of the ongoing suit between the defendant and the 'Perpetuiti Technologies Pvt. Ltd. As a result of which the plaintiff lost the contract of value of about Rs.4.5 crore.

16. The defendants have entered into a conspiracy to undertake concerted action against the plaintiff to damage the plaintiff's business interests in an unethical and illegal manner and the defendants' actions in most cases constitute 'tortious interference' and 'defamation which is likely to cause irreparable loss and reputation' in and to the business of the plaintiff.

17. The plaintiff stated that as regards to defendants' attempts by unlawful means, the potential clients of the plaintiffs to dislodge the

proposed deals with the plaintiff's and enter into similar agreements/arrangements with the defendants; to destabilize and damage the reputation and goodwill of the plaintiff to defame him from the business so as to remove the completions through the tort of conspiracy and act of defamation and of tortious interference.

18. It is alleged that due to the said acts of tortuous interference the defendant has caused loss and/or damages to plaintiff which would run in tens of Crore of rupees and so the plaintiff claims an amount of Rs. One Crore by way of damages in the present suit as well as an interim injunction to restrain defendants from indulging in tortuous interference.

19. Defendants on the other hand have contended that the plaint does not disclose any cause of action. Defendants' alleged actions do not constitute tort of interference. Defendants' letter to IBM referred by the plaintiff is addressed by the defendants' to defendants' own and long-standing client IBM. Plaintiff has not produced the said letter.

20. It is contended by the defendants that this Court in CS(OS) No. 1076/2011 filed by the defendants had passed an interim injunction that was confirmed vide order dated 22nd December, 2011 against Perpetuiti amongst other defendants therein. The plaintiff has taken over all the liabilities of Perpetuiti which includes CS(OS) 1076/2011. The defendants filed an application for impleadment of plaintiff herein as a defendant in that matter which was pending at the time of filing this suit. (The said application has been allowed vide order dated 9th October, 2014).

21. Defendants contended that they have lawful right and are legally justified in providing information to its clients and customers especially when such information directly relates to legitimate business interest of defendant. Such information does not amount to interference, conspiracy or defamation of the plaintiff. It does not amount to defendants' inducement or intention to cause breach of plaintiff's alleged contract since the said information is true. And even otherwise defendants are within their rights to inform their clients about their own product and position vis-a-vis any dispute or problems or short coming that the competitor is facing to legitimately further its own business. Furthermore, if the plaintiff and Perpetuiti are two different entities as alleged by the plaintiff, then the defendants' letter to its client could not possibly give plaintiff a cause of action to act thereupon. IBM as well as other alleged clients/potential clients had written various emails to the plaintiff seeking clarification regarding injunction orders much prior to defendants had allegedly written to IBM about the plaintiff. So there is no question of tort of interference, conspiracy or defamation by the defendants.

22. In CS (OS) 1076/2011, vide order dated 9th October, 2014, Perpetuuiti Technosoft Service Private Limited (plaintiff herein) was impleaded as defendant No.4. The learned counsel for the defendant herein pressed that the interim order already passed on 6th May, 2011 against the defendants No.1 to 3 therein may also continue against the newly impleaded defendant No.4(plaintiff herein). Subsequently, I.A. No.20431/2014 under Order XXXIX R.1 and 2

CPC was filed by the defendant (plaintiff therein) with a prayer that the interim order already passed on 6th May, 2011 and clarification made on 2nd June, 2011 be extended to the newly impleaded defendant No.4. However, it was opposed on behalf of defendant No.4 that the in the plaint available on record therein, there are no allegations against defendant No.4. Learned counsel for the plaintiff stated that in view of the order passed by the Court on 9th October, 2014, the plaintiff intends to file the amended plaint containing the allegations against defendant No.4. Accordingly, the said application is pending for the time being and counsel for the plaintiff agreed to the suggestion that at this stage by disposing of interim application. Thus, without expressing any opinion and deciding the disputes in this regard, the following directions are passed:-

(i) Both the parties from today onwards shall not communicate the personal view with the communication except the orders passed by this Court.

(ii) Learned counsel for the defendants states that the defendant No.1 shall send all the orders passed by the Court to those parties to whom the said defendant earlier issued the communications and serve the copy of the same to the counsel for the plaintiff within two weeks. The affidavit of compliance would be filed within four weeks.

23. The application is disposed of with the said terms and conditions. As far as the relief of damages claim by the plaintiff is concerned, the suit is at the initial stage, the plaintiff has to establish damages in evidence. During the course of hearing of the application, learned counsel appearing on behalf of the defendants.

CS(OS) No.1618/2013

List the matter for framing of issues on 19th February, 2015.

(MANMOHAN SINGH) JUDGE NOVEMBER 24, 2014