Sanovi Technologies (India) Pvt. ... vs Aditya Shyam Bhatia And Ors.
2014 Latest Caselaw 5023 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: 9th October, 2014

+             I.A. No.5580/2013 in CS(OS) No.1076/2011

      SANOVI TECHNOLOGIES (INDIA) PVT LTD          ..... Plaintiff
                  Through Mrs.Prathiba M. Singh, Sr. Adv.
                            with Mr.Vaibhav Vutts, Ms.Aamna
                            Hasan and Ms.Suhasani Rana,
                            Advs.
                  versus

      ADITYA SHYAM BHATIA AND ORS              ..... Defendants
                   Through Mr.Manjira Dasgupta, Adv. for
                            Ms.Diya Kapur, Adv. for D-1-3.
                            Mr.Rajiv Virmani, Sr. Adv. with
                            Mr.Shantanu Sahay and
                            Mr.Aasish Somasi, Adv. for
                            proposed D-4.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I propose to decide the application filed by the plaintiff under Order I Rule 10 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as CPC).

2. The present suit has been filed by the plaintiff against defendants No.1 to 3 for permanent injunction restraining infringement of copyright, infringement of trade dress, passing off, unfair competition, damages, rendition of accounts and delivery up. This Court has been pleased to pass interim injunction dated 6th May,

2011 against the defendant which was made absolute on 22nd December, 2011.

3. The present application is moved by the plaintiff to implead M/s.Perpetuuiti Technosoft Service Private Limited as a defendant in the present suit, being a necessary and proper party. It is averred in the application that the presence before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the matter.

4. It is stated in the application that as per the admission of the defendants themselves in the letter dated 3rd January, 2013 which is filed along with the defendants' application under Order VIII Rule 1A CPC dated 19th January, 2013, the defendants are now continuing the same business under the name and style of Perpetuuiti Technosoft Service Private Limited (proposed defendant) who has taken over the liabilities of the defendant No.3 company. As per plaintiff Perpetuuiti Technosoft Service Private Limited has stepped into the shoes of the defendant No.3.

5. The defendant No.3 has changed modus operandi in the manner of operation of defendants' business with malafide intention in order to breach the interim order passed against the defendants in the suit. The modus operandi now adopted by the defendants are mentioned in para 4 of the application.

6. The application is opposed by the proposed defendant mainly on the ground that the proposed defendant is an independent and distinct legal entity founded in March, 2011 with different shareholders and directors and has no relation with the defendant No.3. Mr.Virmani, learned Senior counsel appearing on behalf of the

proposed defendant, argues that the said company was incorporated prior to the date of filing of the present suit. Therefore, the proposed defendant cannot be impleaded as a party in the suit. It is also argued that the defendant No.3 is owned by the defendants No.1 and

2. On the other hand, the proposed defendant is owned by Mr.Rohil Sharma and Shruti Lakhotia and its directors are Sudesh Sharma, Prashant Kakade and Sundar Raman. The ownership and control of both companies is entirely separate.

7. During hearing of the application, it is not denied by the learned counsel for the proposed defendant that earlier Mr.Rohil Sharma and others were working with the defendant No.3. The copy of the e-mail dated 19th November, 2010 received from plaintiff's partner along with the presentation circulated by the defendant, particularly pages No.69 and 70 as well as other large number of documents speak for themselves that the business which is being carried out by the proposed defendant is the same as that of the defendants except one minor change made in the spelling of the brand name otherwise logo is also identical.

8. It is argued by the learned counsel for plaintiff that the proposed defendant is engaging in the unethical trade practice of unjustly enticing the employees of the plaintiff company by offering them enormous salaries to join proposed defendant and thereby get the confidential information of plaintiff company.

9. From the materials placed on record by the plaintiff which have been referred by the learned counsel for the plaintiff during the course of hearing, it is evident that the defendant No.3 and proposed defendant have obvious connection with each other. The following

details at this stage is enough to grant the prayer made in the application :

"i) One of the directors of proposed defendant i.e. Mr.Rohil Sharma is also claiming as director in the defendant No.3 company. He was working on the development of the said software in question. He is the same director who has been making presentations and representing the defendant No.3 in all proceedings and transactions. He has also made the admission in a letter dated 2nd January, 2013 addressed to the defendant No.3 that "We had started the company together...". The letter has been filed along with has been filed along with defendants' Application under Order 8 Rule 1A dated 19th January, 2013.

ii) The name of the defendant No.3 is "Perpetuti Technologies Pvt. Ltd.". The name of proposed defendant is "Perpetuuiti Technosoft Service Private Limited". The difference between the two is an addition of the alphabet "U" in the company name;

The manner of presentation, lay out, trademarks, logos etc. of defendant No.3 and proposed defendant are almost same. The internet extracts from the website www.ptechnosoft.com of proposed defendant has been filed ;

iii) The defendant No.3 and proposed defendant have the same set of clients for example such as IBM. The

internet extract from the website www.ptechnosoft.com of Technosoft showing IBM as a partner of Technosoft is filed;

10. It is alleged in the application that Rohit Sharma is the same person who were working with the defendant No.3 alongwith Mr. Rohil Sharma, Mr. Prashant Kakade and Mr. Sundar Raman, are now working with Technosoft (where Mr. Rohil Sharma is a director) and continuing to use and commercialize the infringing software. The extracts from the records of Registrar of Companies showing Mr Rohil Sharma as the director of Technosoft has been filed.

11. It is not disputed that the similar relief claimed in the application can be claimed by way of a separate suit. Therefore, no prejudice would be caused to the defendants and proposed defendant if the prayer is allowed in order to avoid litigation and to decide the real controversy between the parties and even if the proposed defendant is distinct entity which was incorporated in March 2011, still this Court feels that it does not change the basic nature of the suit. Therefore, in the interest of justice and complete justice proposed defendant is a necessary party. Assuming the fresh suit is filed against the proposed defendant, the issue involved for infringement of copyright has to be determined by the Court by consolidation of the two suits. Under these circumstances, it is appropriate to allow the prayer made in the present application as this Court felt that it was a bonafide mistake on the part of the plaintiff not to implead the proposed defendant as a party and now it is necessary for determination of the real matter in dispute by adding the same.

12. The application is accordingly disposed of.

13. The amended memo of parties filed along with the application is taken on record.

(MANMOHAN SINGH) JUDGE OCTOBER 09, 2014