Delhi High Court
Ge Power India Limited vs Nhpc Limited on 26 June, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th June, 2020
Decided on: 26th June, 2020
+ CS (COMM) 140/2020
&
I.A. 4016/2020 (under Order XXXIX Rule 1 and 2 CPC)
GE POWER INDIA LTD. .....Plaintiff
Represented by: Mr.C.M. Lall, Sr.Advocate with
Ms.Nancy Roy and Ms.Tia Malik,
Advocates.
versus
NHPC LIMITED ..... Defendant
Represented by: Mr.Sachin Datta, Sr.Advocate with
Mr.Piyush Sharma and Mr.Ayush
Shukla, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
JUDGMENT
1. The hearing has been conducted through Video Conferencing.
2. As per the plaint, the plaintiff company which was initially known as
Asea Brown Boveri Management Limited underwent a name change to
Alstom Projects India Ltd. on 11th November, 2002. Subsequent thereto on
6th June, 2012 the plaintiff‟s name was changed to Alstom India Ltd. and
pursuant to a global acquisition of Alstom India Ltd. by General Electric
Company on 5th August, 2016 the plaintiff underwent another name change
to GE Power India Ltd., i.e. the plaintiff herein.
3. The plaintiff‟s predecessor, that is, Alstom India Ltd. (earlier known
as Alstom Projects India Ltd.) (in short „Alstom‟) entered into a contract
with Lanco Infratech Limited (in short „LIL‟) on 18th May, 2009 for the
design, manufacture, test, delivering and commissioning of facilities, that is,
Turbine, Generator, Main Inlet Valve, Governing system, Excitation system,
Control System for Hydro Electric Project for Teesta VI (in short „Teesta VI
Project'). The Teesta VI Project was awarded to Lanco Teesta Hydropower
Limited (in short LTHPL) a Special Purpose Vehicle Company, a part of
Lanco Group of Companies. Alstom entered into an agreement with LIL
inter alia for supply of engineering drawings which were covered by the
copyrights owned by Alstom and on global acquisition of Alstom by the
plaintiff company, subject to the confidentiality protections for which the
plaintiff states that it received part payment and huge payments were still
outstanding against LIL. The drawings and documents submitted by Alstom
to LIL were used in Teesta VI Project subject to the copyright therein
vesting with Alstom. The General Conditions of Contract (in short „GCC‟)
between Alstom and LIL also stipulated an undertaking of all confidential
information given to LIL by Alstom in Clause 3.16.
4. On 7th August, 2017 insolvency proceedings commenced against LIL
and the said company went into liquidation on 27th August, 2018. As regards
LTHPL on 26th July, 2019 on the recommendation of Resolution
Professional, a resolution plan was accepted by the NCLT by virtue whereof
the defendant acquired the Teesta VI Project from LTHPL. On 11th
February, 2020 the defendant sent an intimation to offer for a Single Vendor
Tender to the plaintiff however, on 17th April, 2020 the bid of the plaintiff
was not accepted on the ground "that price of M/s GE Power Ltd. was
abnormally higher than tender check document". Thereafter on 5th May,
2020 the defendant issued an open tender for Teesta VI Project when it is
alleged by the plaintiff that the defendant published and disclosed to third
parties six copyrighted and highly confidential drawings of the plaintiff and
in the pre bid meetings the defendant expressed its intension to hand over all
drawings in which the plaintiff claims copyright to the successful bidder.
5. Aggrieved by this violation of the plaintiff‟s copyright in the six
drawing and the requirement to maintain confidentially being breached,
plaintiff has preferred the present suit.
6. Learned counsel for the plaintiff contends that the present action by
the plaintiff arises because of the defendant‟s action of infringement of the
plaintiff‟s copyright and violation of the plaintiff‟s right in certain data and
drawings including rights to prevent wrongful possession, publication and
use of the plaintiff‟s proprietary and confidential information governed by
common law rights and contract. The plaintiff‟s copyright is protected in
the drawings and data which are also confidential in nature and without a
license from the plaintiff or without explicit permission of the plaintiff, the
defendant could not have used the drawings and data and publicised the
same. The plaintiff‟s copyright in the drawings, grants the plaintiff
exclusivity over its use. The drawings being highly confidential, the
confidential proprietary rights of the plaintiff are being illegally possessed
by the defendant and impermissibly published on the worldwide web
resulting in not only the infringement of the plaintiff‟s copyright but also the
right of the plaintiff to control the use and to preserve the confidentiality of
the drawings and data. Plaintiff claims that the action of the defendant
resulting in everyday listing of the said drawings and data on the worldwide
web page is causing irreparable harm to the plaintiff and the defendant is
liable to immediately pull down the said drawings and data from its
webpage. The plaintiff had granted a conditional and limited license of these
drawings to LIL vide the contract entered into on 18th May, 2009 and the
said contract/license has been terminated on 24 th May, 2020. Even by the
process of resolution of LIL or LTHPL the defendant could not have
acquired the license/proprietary rights in the drawings and data which
belong to the plaintiff. The defendant cannot be permitted to plagiarise the
drawings merely because the defendant is a State owned company.
7. When the defendant floated the single vendor tender it was conscious
of the fact that the plaintiff had the proprietary rights in the drawings and the
data, thus, the draft terms sent by the defendant to the plaintiff clearly
recognised the said rights of the plaintiff. Merely because the single vendor
tender was declined by the defendant on the ground that price of the plaintiff
was abnormally higher than the tender check document, the defendant does
not get vested with the license/right to use the drawings and pass it on to the
world at large by way of publishing on their webpage or even to a third
party. The proprietary right of the plaintiff in the drawings and data is duly
recognised even by the third parties who have raised queries about the
manner in which the same can be acquired from the plaintiff. Defendant not
only published the drawings but also deleted the identity of the owner, that
is, Alstom and also deleted the disclaimer on the drawings that the same
could not be published without permission. This act of the defendant is
clearly unwarranted and illegal. The attempt of the defendant in including
parts of the third parties into pre existing units supplied by the plaintiff
completely compromises with the warranties and guarantees on the
equipments already supplied and used in the project.
8. The plea of the defendant of fair dealing protected under Section
52(1)(a) of the Copyright Act is misconceived for the reason fair dealing is
only applicable to private or personal use including research and does not
apply to commercial activity. Section 52(1)(x) of the Copyright Act applies
only to architectural drawings or plans that are used for reconstruction of a
building or structures "originally constructed" and therefore stipulates that
the building or structure with the said drawings was made with the consent
or license of the owner of the copyright in such drawings and plans. There
is no exception prescribed under Section 52 of the Copyright Act which
permits completion of an unfinished project via the use of the plaintiff‟s
copyright drawings to be used by a third party without a license issued by
the plaintiff. Further Section 52 of the Copyright Act also does not create an
exception for the using party to be State. The copyright being a right which
is statutory in nature, it would be governed by the provisions of the Act. In
case the proprietary items of a party are required to be used, in that situation
the defendant can only issue a single vendor tender as the defendant did
initially but for frivolous reasons rejected the same. Reliance is placed on
the decision reported as 2006 (13) SCC 382 Nagar Nigam Meerut vs. Al
Faheem Meat Exports Pvt. Ltd.
9. The plaintiff having granted a conditional and limited license to LIL
in respect of its copyright drawings and data, the plaintiff cannot be treated
to have passed on the copyright vested in the plaintiff in the drawings and
data to either LIL or LHTPL or the defendant and the copyright in the said
drawing and data would continue to vest in the plaintiff. Having accepted
the conditional and limited license, LIL or its successors-in-interest cannot
reverse the position and deny the existence of the copyright in favour of the
plaintiff as held in the decision of this Court reported as 2012 (50) PTC 380
(Del.) Astrazeneca UK Ltd. & Anr. vs. Orchid Chemicals. Since LIL was a
licensee, it was paying to the plaintiff the contract price in consideration of
the performance by the plaintiff. In Clause 3.42.3 of the agreement between
the plaintiff and LIL it was clearly provided that upon termination of the
contract LIL shall pay to the plaintiff all payments specified and only then
would the plaintiff deliver to the LIL all drawings/specifications and other
documents prepared by the plaintiff. Further copyright is an intangible asset
and cannot be divested from the party owning the copyright except by way
of assignment or a license and admittedly the defendant has neither any
assignment deed in its favour nor any license deed.
10. Learned counsel for the plaintiff states that the objection of the
learned counsel for the defendant that this Court has no territorial
jurisdiction to entertain the suit is also liable to be rejected. The defendant
has floated an open tender and on the official website of the defendant and
on the Central Public Procurement Portal (in short „CPPP‟) the drawings of
the plaintiff have been uploaded which infringe the copyright of the
plaintiff. The CPPP website for e-procurement system of India is more than
an interactive website and permits submission of the bid online through the
said portal. At least two of the companies have accessed the website from
Delhi and have raised queries before submitting the bid. Reliance is placed
on the decision of this Court reported as 2009 SCC OnLine Del. 3780
Banyan Tree Holding (P) Ltd. vs. A. Murali Krishna Reddy & Anr. The
drawings and data in which the plaintiff has copyright having been
communicated at Delhi and copies of the work which were not in circulation
already having been issued for circulation at Delhi, this Court has territorial
jurisdiction to entertain the suit. In the decision reported as 2019 SCC
OnLine Del. 9193 Exxon Mobil Corporation vs. Exoncorp Pvt. Ltd. it was
clearly held that once reservations are made in respect of a particular
jurisdiction even if the same does not materialise, the same is sufficient to
attract the jurisdiction of the Court. When the plaintiff filed the suit there
was imminent threat of infringement however, the threat materialised after
the plaintiff filed the suit. The present suit even on an imminent threat
within the territorial jurisdiction of this Court would be maintainable.
11. Further, the subject matter of the present suit being the infringement
of the copyright of the plaintiff in the drawings and data which have been
publicised by the defendant and not the plaintiff‟s claim against LIL for
recovery of money for the user of the plaintiff‟s drawings, the said cause of
action cannot be decided before the NCLT and the present suit is
maintainable. Jurisdiction of NCLT under Section 60(5) Insolvency and
Bankruptcy Code (in short IBC‟) is limited in respect of the claims by or
against the corporate debtor including claims by or against any of its
subsidiaries situated in India. The plaintiff is neither a subsidiary of LIL nor
a corporate debtor itself. Reliance is placed on the decision reported as 2014
(16) SCC 51 Bhanwar Lal & Anr. vs. Rajasthan Board of Muslim Wakf &
Ors. Since Alstom was not into liquidation nor a resolution plan prepared
and acquired by the defendant qua the assets of Alstom, based on the cause
of action pleaded in the suit, the plaintiff is not required to be relegated to
the NCLT or NCLAT and the jurisdiction of the civil court is not ousted.
12. Objecting to the maintainability of the present suit learned counsel for
the defendant submits that this Court has no territorial jurisdiction to try the
suit as neither the plaintiff nor the defendant reside nor work for gain within
the territorial jurisdiction of this Court. The plaintiff‟s registered office is in
Mumbai whereas the defendant‟s registered office is in Faridabad. Learned
counsel for the defendant further submits that mere publishing the tender on
CPPP would not entail the territorial jurisdiction of this Court on the ground
that the cause of action has arisen within Delhi. Reliance of learned counsel
for the plaintiff on the decision in Banyan Tree (supra) is incorrect, rather
the said decision goes in favour of the defendant. In Banyan Tree (supra)
the Division Bench of this Court held that only if it is an interactive website
and the customers are specifically targeted within the jurisdiction of this
Court by the interactive website, that this Court will have territorial
jurisdiction to try the suit.
13. The portal not being an interactive website and even if initial bid is
furnished online, the technical and financial bids in sealed cover have finally
to be submitted to the defendant at Faridabad by hand, hence the cause of
action, if any, arises at Faridabad. Offline submissions of the bid are
mandatory at Faridabad and the payment has also to be made at Faridabad.
Therefore, no commercial transaction can be concluded by the said website
on which the offer for tender has been uploaded. The purpose of uploading
the tender on the website is for information purposes only and not
specifically targeting users in Delhi. The defendant is engaged in the
business of power generation and all its business activities are carried out
from its corporate headquarters at Faridabad or from various places where
its power generating stations are located.
14. Learned counsel for the defendant further contends that the present
suit is also not maintainable as the dispute, if any, is arising out of or in
relation to the insolvency resolution process and can be decided only by the
NCLT and the jurisdiction of civil court is thus barred. Referring to Section
60(5) of the IBC, it is contended that the said provision starts with a non-
obstante clause and, therefore, any question arising in relation to the
insolvency resolution or liquidation proceedings of the corporate debtor or
corporate person under IBC will not be amenable to the jurisdiction of Civil
Court. Referring to Sections 231 and 238 of IBC it is stated that the
provisions of IBC override the provisions of other enactment. IBC being a
complete Code and NCLT acting under the Code is empowered to grant a
single window clearance for all actions as provided in the resolution plan
approved by the NCLT. The fact that LTHPL is repository of all relevant
rights arising out of contractual relationship between LIL and Alstom is a
matter well within the knowledge of the plaintiff and that is why plaintiff
has not impleaded LIL as a party to these proceedings. The present suit is
also bad for non-impleadment of the necessary party i.e. LIL.
15. In the insolvency proceedings against LIL vide order dated 26th
August, 2018 NCLT ordered liquidation of LIL, thereafter the plaintiff
submitted its claim to the Liquidator of LIL and against the financial claim
of ₹1,63,55,66,682/- the Liquidator approved the claim of the plaintiff only
to the extent of ₹74,09,89,663/- which is duly reflected in the email dated 5th
May, 2018 addressed by the Liquidator of LIL. In case not satisfied by the
decision of the Liquidator, the remedy with the plaintiff is of filing an appeal
before NCLAT and not the present suit. The financial entitlement of the
plaintiff is inextricably linked with the issue pertaining to vesting of
copyrights in respect of alleged drawings of the plaintiff‟s predecessor and
there being a clear connection or relation between the financial claim and
the claim of exclusive copyright, if any, the same is also required to be
decided by NCLT. Reliance is placed on the decision of this Court reported
as 2019 (258) DLT 52 Liberty House Group Pvt Ltd. vs. State Bank of India
& Ors.
16. According to learned counsel for the defendant, in the suit the plaintiff
has failed to plead how the copyright owned by Alstom Projects India Ltd.
vested in the plaintiff. In the absence of the said disclosure, the plaintiff
cannot claim any copyright in the drawings on the pretext that it is a
successor in interest of Alstom. Reliance is placed on the decision of this
Court reported as MANU/DE/1896/2012 General Electric Canada Inc. vs.
NHPC. Even considering the terms of the contract between Alstom and
LIL, LIL was free to reproduce all drawings, documents and other material
for the purpose of contract, including if required for the maintenance and
operation of the facilities. The defendant being the successor-in-interest of
LTHPL for whom LIL entered into agreement dated 18th May, 2009, the
defendant cannot be prevented from using the documents, data, drawings
and other information. Learned counsel for the defendant contends that a
perusal of Clause 3.20.2 makes it clear that preparation of drawings was for
the purpose of work to be carried out at the site and was a collaborative
exercise between LIL and Alstom, hence, Alstom cannot have any exclusive
copyright in respect of the drawings.
17. Reliance is further placed on Clause 3.42.3.2 which deals with the
termination of the contract between LIL and Alstom on account of
insolvency of LIL and provides that on such termination Alstom shall
immediately deliver to the client i.e. LIL all drawings, specifications and
other documents prepared by the contractor i.e. Alstom or its sub-contractors
as of the date of termination in connection with the facilities. This provision
is in contrast with Clause 3.42.1 wherein in the event of termination on
account of client‟s convenience only non-proprietary drawings were to be
delivered to the client.
18. Contention of learned counsel for the plaintiff in respect of the
purported admissions made by the defendant while issuing single vendor
tender is misconceived. A perusal of the terms of offer of single tender
indicates that the scope of work was preparation of all layout, interface and
erection drawings which is now sought to be awarded by the defendant. It is
thus only for the drawings to be made in future pursuant to the award of
contract that the successful bidder will be required to grant an exclusive and
non-transferable business to NHPC. Further the provision takes care that
NHPC will be free to use the drawings and material for the purpose of
contract including operations and maintenance hence there is no admission
in the single vendor tender.
19. Learned counsel for the defendant states that the plaintiff‟s case in
respect of the copyright is completely vague and plaintiff has shown no
copyright in the drawings vested with it. Section 52 (1)(w) of the Copyright
Act provides against perpetuation of any monopolistic rights in industrial
drawings in the guise of copyright. The said provision recognizes the fair
use of copyright in the contract of a technical drawing for industrial
applications and specifically permits such use. Reliance is placed on the
decision reported as (1982) RPC 133 Leco Instruments (U.K.) Ltd vs. Land
Pyrometers Ltd. As the plaintiff has neither made out a prima facie case nor
even a case of irreparable loss, the balance of convenience also lies in favour
of the defendant no interim injunction be granted and the suit and the
application be dismissed.
20. Before the suit and application can be proceeded forward on merits,
two preliminary objections of the defendant i.e. want of territorial
jurisdiction and also lack of the subject matter jurisdiction of this Court to
try the suit are required to be determined.
21. Objection of learned counsel for the defendant that this Court has no
territorial jurisdiction to entertain the present suit is liable to be rejected for
the reason that part of cause of action has arisen in Delhi, even though
neither the plaintiff nor the defendant may be residing or working for gain in
Delhi. It is the admitted case of the defendant that the purported drawings of
the plaintiff in which it claims copyright have been fed into the computer of
the CPPP and uploaded on the website at Delhi. As per Section 14 (c)(i), (ii)
and (iii) of the Copyright Act, „Copyright‟ means the exclusive right subject
to the provisions of the Copyright Act to do or authorise the doing of any act
in respect of a work or substantial part thereof including storing it in any
medium by electronic and other means, to communicate the work to the
public and issuing copies of the work to the public not being copies already
in circulation. Thus copies of the plaintiff‟s purported work having been
issued by putting the same on the portal and circulating the same to the
public including the public in Delhi would give rise to cause of action at
Delhi.
22. Both learned counsels for the plaintiff and the defendant have relied
upon the decision of the Division Bench of this Court in Banyan Tree
(supra) wherein it was held:
"42. This Court holds that jurisdiction of the forum court does
not get attracted merely on the basis of interactivity of the
website which is accessible in the forum state. The degree of the
interactivity apart, the nature of the activity permissible and
whether it results in a commercial transaction has to be
examined. For the "effects" test to apply, the Plaintiff must
necessarily plead and show prima facie that the specific
targeting of the forum state by the Defendant resulted in an
injury or harm to the Plaintiff within the forum state. For the
purposes of a passing off or an infringement action (where the
plaintiff is not located within the jurisdiction of the court), the
injurious effect on the Plaintiffs business, goodwill or
reputation within the forum state as a result of the Defendants
website being accessed in the forum state would have to be
shown. Naturally therefore, this would require the presence of
the Plaintiff in the forum state and not merely the possibility of
such presence in the future. Secondly, to show that an injurious
effect has been felt by the Plaintiff it would have to be shown
that viewers in the forum state were specifically targeted.
Therefore the "effects" test would have to be applied in
conjunction with the "sliding scale" test to determine if the
forum court has jurisdiction to try a suit concerning internet
based disputes."
23. The Division Bench of this Court in Banyan Tree (supra) thus held
that mere accessibility in the forum state based on the interactivity of the
website is not sufficient to attract the jurisdiction of the forum court and it
has to be examined whether the same results in a commercial transaction
thereby causing an injurious effect on the plaintiff‟s business, goodwill and
reputation within the forum state as a result of defendant‟s website being
accessed in the forum state. Further the Hon'ble Supreme Court in the
decision reported as 1994 (4) SCC 711 Oil & Natural Gas Commission vs.
Utpal Kumar Basu and Ors. dealing with the territorial jurisdiction of the
Court to entertain a writ petition in the case of tender held that merely
because the plaintiff became aware of the advertisement in Calcutta, it
submitted its bid or tender from Calcutta and made representations
demanding justice from Calcutta on learning about the rejection of its offer
would not attract jurisdiction of the said Court. This is exactly what
learned counsel for the defendant argues. However, in the present case, the
distinguishing feature is that the cause of action as pleaded by the plaintiff
is not the publishing of the bid by the defendant in Delhi but that while
publishing the bid his copyright in the drawings has been infringed at Delhi
by storing the same in the electronic medium, making copies of the same
and uploading the same on the portal of CPPP to be viewed all over India
including Delhi and thus pleads that the act of the defendant in storing an
communicating the work of the plaintiff to the public including the public
in Delhi amounts to infringement of its copyright under Section 14(c)(i),
(ii) and (iii) of the Copyright Act hence the cause of action also arises in
Delhi. The plaintiff also claims that the threat anticipated by the plaintiff
actually came true and at least two parties downloaded the drawings in
Delhi in the process of participation in the tender and hence there was
infringement of its copyright. Since the cause of action as pleaded in the
present suit is not issuance of the tender or an offer for a bid but uploading
the drawings on the computer systems at Delhi and disclosure of the
drawings of the plaintiff to the public, issuing copies thereof, which all
amounts to infringement of the plaintiff‟s copyright giving rise to cause of
action under Section 20 of the Copyright Act, this Court agrees with the
submission of the learned counsel for the plaintiff that though in a case
involving infringement/passing off the trademark an imminent threat of a
commercial transaction taking place in the forum state would give rise to
cause of action however, in a suit alleging infringement of the copyright,
the cause of action would arise in the forum state where the infringement of
the copyright in terms of the Copyright Act would take place. Hence the
first objection of the learned counsel for the defendant that this Court has
no territorial jurisdiction to entertain the present suit deserves to be
rejected.
24. Learned counsel for the defendant has vehemently argued that the
dispute raised by the plaintiff in the present suit is not amenable to
jurisdiction of a civil court and the remedy with the plaintiff if any lies
before the NCLT or if aggrieved by the order thereof before the NCLAT.
To decide this issue it would be necessary to advert to the pleadings of the
plaintiff in the suit and the documents filed.
25. As per the plaint, plaintiff granted a conditional, limited license to
these drawings to LIL vide the contract dated 18th May, 2009. Relevant
provisions of the contract dated 18th May, 2009 are as under:-
"3.0 General Conditions of Contract
A Contract and Interpretation
3.1 DEFINITIONS
The following words and expressions shall have the meanings
hereby assigned to them:
3.1.0 "Employer" means the Lanco Energy Private Limited, Plot No.-
229, Udyog Vihar- Phase-1, Gurgaon-122016 and includes the legal
successors or permitted assigns of the Client.
3.1.1 "Client" means the Lanco Infratech Limited, Plot No.229,
Udyog Vihar - Phase 1, Gurgaon-122016 and includes the legal
successors or permitted assigns of the Client.
3.1.2 xxx
3.1.3 xxx
3.1.4 "Contractor" means M/s Alstom Projects India Limited (APIL),
having their office at via. E.R.D.A.road, G.I.D.C. Maneja, Vadodara-
390013, Gujarat, whose bid has been accepted by the Client to
perform the Contract and is named as such in the Contract
Agreement, and includes the legal successors or permitted assigns of
the Contractor.
x x x
3.1.17 "Contract" means the Contract Agreement entered into
between the Client and the Contractor, together with the Contract
Documents referred-therein; they shall constitute the Contract, and
the term "the Contract" shall in all such documents be construed
accordingly."
xxx
"3.1.23 "Drawings" shall mean all;
1) Drawings furnished by the Client as a basis for
bid
2) Supplementary drawings furnished by the Client to
clarify and to define in greater detail the intent of
the Contract.
3) Drawings submitted by the Contractor with his bid
and subsequently during execution of the Contract
and duly approved by the Client.
4) Drawings furnished by the Client to the
Contractor during the progress of the work on the
Facilities; and
5) Engineering data and progress of the work on the
Facilities provided such drawings are acceptable
to the Client.
xxx
"3.9 CONTRACTOR'S RESPONSIBILITES
3.9.1 The Contractor shall design, manufacture (including
associated purchases and/or Sub Contracting), install and
complete the Facilities with due care and diligence in
accordance with the Contract."
3.9.2 xxx
xxx
D. Intellectual Property
3.15 COPYRIGHT
3.15.1 The copyright in all drawings, documents and other
materials containing data and information furnished to the
Client by the Contractor herein shall remain vested in the
contractor or, if they are furnished to the Client directly or
through the contractor by any third Party, including
supplies of materials, the copyright in such materials shall
remain vested in such third Party.
The Client shall, however, be free to reproduce all
drawings, documents and other material furnished to the
Client for the purpose of the Contract, including, if
required, for operation and maintenance of the Facilities.
3.16 CONFIDENTIAL INFORMATION
3.16.1 The Client and the Contactor shall keep confidential
and not, without the written consent of the other party
hereto, divulge to any third party any documents, data or
other information furnished directly or indirectly by the
other Party hereto in connection with the Contract,
whether such information has been furnished prior to,
during or following termination of the Contract.
Notwithstanding the above, the Contractor may furnish to
its Sub Contractor (s) such documents, data and other
information it receives from the Client to the extent
required for the Sub-Contractor (s) to perform its work
under the Contract, in which event the Contractor shall
obtain from such Sub Contractor (s) an undertaking of
confidentiality similar to that imposed on the Contractor
under this GCC Clause 3.16.
3.16.2 The Client shall not use such documents, data and
other information received from the Contractor for any
purpose other than the operation and maintenance of the
Facilities and for any information to be furnished to
Governing Authorities under the applicable law and
regulations. Similarly, the Contractor shall not use such
documents, data and other information received from the
Client for any purpose other than the design, procurement
of Plant and Equipment, construction or such other work
and services as are required for the performance of the
contract.
3.16.3 The obligation of a Party under GCC Sub-Clauses
3.16.1 and 3.16.2 above, however, shall not apply to that
information which
(a) now or hereafter enters the public domain through
no fault of that Party.
(b) can be proven to have been possessed by that Party
at the time of disclosure and which was not
previously obtained, directly or indirectly, from the
other Party thereto.
(c) otherwise lawfully becomes available to that Party
from a third Party that has no obligation of
confidentiality.
3.16.4 The above provisions of this GCC Clause 3.16 shall
not in any way modify any undertaking of confidentiality
given by either of the Parties hereto prior to the date of
the Contract in respect of the Facilities or any part
thereof.
3.16.5 The provisions of this GCC Clause 3.16 shall
survive termination, for whatever reason, of the Contract.
3.42 TERMINATION
3.42.1 Termination for Client's Convenience
3.42.1.1 xxx xxx
3.42.1.2 xxx xxx
3.42.1.3
3.42.3 Termination by contractor
3.42.3.1 If (a) the Client has failed to pay the Contractor any
sum due under the Contract within the specified period,
has failed to approve any invoice or supporting documents
without just cause pursuant to Appendix 1 (Terms and
Procedures of Payment) of the Contract Agreement or
commits a substantial breach of the Contract, the
Contractor may give a notice to the Client that requires
payment of such sum, with interest thereon as stipulated in
GCC Sub-Clause 3.12.3, requires Approval of such
invoice or supporting documents, or specifies the breach
and requires the Client to remedy the same as the case
may be. If the Client fails to pay such sum together with
such interest, fails to approve such invoice or supporting
documents or give its reasons for withholding such
Approval, fails to remedy the breach or take steps to
remedy the breach within fourteen (14) Days after receipt
of the Contractor's notice.
Or
(b) the Contractor is unable to carry out any of its
obligations under the Contract for any reason attributable
to the Client, including but not limited to the Client's
failure to provide possession of or access to the Site or
other areas or failure to obtain any governmental permit
necessary for the execution and/or completion of the
Facilities, which the Client is required to obtain as per
provision of the Contract or as per relevant applicable
laws of the Country,
then
the Contractor may give a notice to the Client thereof, and
if the Client has failed to pay the outstanding sum, to
approve the invoice or supporting documents, to give its
reasons for withholding such Approval, or to remedy the
breach within twenty-eight (28) Days of such notice, or if
the Contractor is still unable to carry out any of its
obligations under the Contract for any reason attributable
to the Client within twenty-eight (28) Days of the said
notice, the Contractor may by a further notice to the
Client referring to this GCC Sub-Clause 3.42.3.1 forthwith
terminate the Contract.
3.42.3.2 The Contractor may terminate the Contract
forthwith by giving a notice to the Client to that effect,
referring to this GCC Sub-Clause 3.42.3.2, if the Client
becomes bankrupt or insolvent has a receiving order
issued against it, compounds with its creditors, or being a
corporation, if a resolution is passed or order is made for
its winding up (other than a voluntary liquidation for the
purposes of amalgamation or reconstruction) a receiver is
appointed over any part of its undertaking or assets or if
the Client takes or suffer any other analogous action in
consequence of debt.
3.42.3.3. If the Contract is terminated under GCC Sub-
Clauses 3.42.3.1 or 3.42.3.2, then the Contractor shall
immediately
(a) cease all further work, except for such work as may
be necessary for the purpose of protecting that part of the
Facilities already executed or any work required to leave
the Site in a clean and safe condition.
(b) terminate all subcontracts except those to be
assigned to the Client Pursuant to paragraph (d) (ii)
(c) remove all Contractor's Equipment from the Site
and repatriate the Contractor's and its Subcontractor's
personnel from the Site.
(d) In addition, the Contractor, subject to the payment
specified in GCC Sub-Clause 3.42.3.4 shall
(i) deliver to the Client the parts of the Facilities
executed by the Contractor up to the date of
termination.
(ii) to the extent legally possible, assign to the
Client all right, title and Benefit of the Contractor to
the Facilities and to the Plant and Equipment as of
the date of termination, and, as may be required by
the Client, in any subcontracts concluded between
the Contractor and its Subcontractors.
(iii) deliver to the Client all drawings,
specifications and other documents prepared by the
Contractor or its Subcontractors as of the date of
termination in connection with the Facilities.
3.42.3.4 If the Contract is terminated under GCC Sub-
Clauses 3.42.3.1 or 3.42.3.2 the Client shall pay to the
Contractor all payments specified in GCC Sub-Clause
3.42.1.3 and reasonable compensation for all loss or
damage sustained by the Contractor arising out of in
connection with or in consequence of such termination.
3.42.3.5 Termination by the Contractor pursuant to this
GCC Sub-Clause 3.42.3 is without prejudice to any other
rights or remedies of the Contractor that may be exercised
in lieu of or in addition to rights conferred by GCC Sub-
Clause 3.42.3.
(Emphasis Supplied)
26. From the terms of the contract dated 18th May, 2009 arrived at
between Alstom and LIL it is evident that LEPL was the employer, LIL the
client and Alstom was the contractor including their legal successors or
permitted assigns. This Court raised queries to learned counsels for the
plaintiff and defendant in regard to the relationship between LIL, Lenco
Energy Power Ltd. (in short LEPL) i.e. the employer and LTHPL the
successor-in-interest of the defendant. In this regard the defendant has
placed on record the certificate of incorporation of LTHPL which was
earlier known as Lanco Teesta Hydro Power Pvt. Ltd. and originally
incorporated as Lanco Energy Pvt. Ltd., that is, LEPL, the employer
mentioned in the agreement dated 18th May, 2009 between LIL and Alstom,
the predecessor in interest of the plaintiff.
27. Though learned counsel for the plaintiff has repeatedly urged that the
plaintiff had no privity with LTHPL and LTHPL being a third party in the
absence of an assignment as mandated under Section 19 of the Copyright
Act, LIL could not have parted with the drawings to LTHPL who in turn
parted the drawings to NHPC who are further making copies and
transmitting the same unauthorisedly, infringing the plaintiff‟s copyright,
however, at this stage, it would be appropriate to note pleadings of the
plaintiff in para-8 of the plaint i.e. "Though the plaintiff claims that as LIL
went into liquidation by virtue of an order dated 27th August, 2018 passed by
the NCLT, Hyderabad Bench, the plaintiff believed that defendant
improperly obtained plaintiff's copyrighted and confidential drawing when
the defendant acquired the LIL's Special Purpose Vehicle, that is, LTHPL in
the CIRP proceedings." It is thus evident that there is an admission of the
plaintiff that LTHPL was a special purpose vehicle of LIL. Further, in the
agreement dated 18th May, 2009 between Alstom and LIL there is a
recognition of LEPL, the successor-in-interest of LTHPL as the employer.
28. No doubt assignment of the copyright in a drawing has to be by way
of a written agreement between the parties and even for a purpose of license
there has to be a document duly signed by the owner of copyright or his
authorised attorney. In the absence of an assignment or a license in writing
by the plaintiff, the defendant did not automatically have a right on the
assets of the plaintiff which were not even the assets of LIL in terms of
Section 36 (4) of IBC. Further, though Section 36 (3) (d) includes
intellectual properties as intangible assets however, sub-section (4) clarifies
that the assets which cannot be included in the liquidation estate assets
include other contractual arrangements which do not stipulate transfer of
title but only use of the assets. No document has been produced by the
defendant to assert the right that there was any assignment of the copyright
of the plaintiff to LIL or LTHPL or to the defendant. From the agreement
dated 8th May, 2009, at best a license for use was issued to LIL for the
purposes of Teesta VI Project and was subject to delivery to LIL on
termination of the contract due to insolvency of LIL.
29. In terms of Clause 3.15.1 of the GCC the copyright in all the
drawings, documents and other materials containing data and information
furnished to the client i.e. by the contractor i.e.Alstomremained vested in the
contractor however, the client was free to reproduce all drawings,
documents and other materials to the client for the purpose of the contract
including if required for the operation and maintenance of the facilitates. As
per Clause 3.16.1 as noted above the client and the contractor were to keep
the drawings, documents, data and information confidential and without the
written consent of the other party hereto was prohibited from divulging to
any third party with a rider that the contractor was required to furnish the
documents, data and information to its sub-contractor for performance of the
contract. Further on termination of the contract by the contractor due to
insolvency of the client which is the reason assigned in the notice dated 24th
May, 2020, the contractor subject to payments specified in GCC sub-clause
3.42.3.4 was required to deliver to the client all drawings, specifications and
other documents prepared by the contractor or its sub-contractors as on the
date of termination in connection with the facilities. It is for these terms in
the agreements between the plaintiff and LIL that defendant contends that
since the contract with LIL has been terminated due to LIL‟s insolvency, the
plaintiff was required to deliver all the drawings, specifications and other
documents to LIL and defendant having been assigned all the rights of the
employer i.e. LTHPL successor-in-interest of LEPL on as is where is basis,
the defendant steps into the shoes of employer, that is, LEPL and is thus
retaining the right to use the drawings.
30. Defendant claims that the defendant received the drawings from
LTHPL in terms of clause 16 sub-clause (b) of the resolution plan of LTHPL
which reads as under:
"16. BASIS OF PREPARATION
The Resolution Applicant has prepared this Resolution Plan
on the basis of the following, and upon approval of this
Resolution Plan by the NCLT, the Corporate Debtor and the
Resolution Applicant, as the case may be, shall be entitled to
the following:
(a ) Consents and approvals, authorizations etc.
xxx xxx xxx
(b) Licenses/Approvals / Contractual Rights and Benefits
(i) Upon approval of this Resolution Plan by the NCLT and
since the Resolution Applicant will acquire the Corporate
Debtor on a going concern basis, all subsisting consents,
incentives, licenses, approvals, rights, entitlements, benefits
and privileges whether under law, contract lease or license
granted in favour of Corporate Debtor or to which the
Corporate Debtor is entitled or accustomed to shall
notwithstanding any provision to the contrary in their terms,
be deemed to continue without disruption for the benefit of the
Corporate Debtor.
(ii) For the avoidance of doubt, it is hereby clarified that all
consents, licenses, approvals, rights, entitlements, benefits and
progress whether under law, contract lease or license granted
in favour of the Corporate Debtor or to which the Corporate
Debtor is entitled or accustomed to, which have expired as of
the Completion Date shall be deemed to continue without
disruption for the benefit of the Corporate Debtor until
renewed by the relevant authorities. Without any liability for
the non-compliance during the time specified above, the
Resolution Applicant undertakes to cause the Corporate
Debtor to expeditiously identify such expired consents,
licenses, approvals, rights, entitlements, benefits and
privileges whether under law, contract, lease or license,
granted in favour of the Corporate Debtor or to which the
Corporate Debtor is entitled Or accustomed to evaluate the
steps required to address the same and take steps to remedy
the same to the extent practically possible. Upon approval of
this Resolution Plan by the NCLT, any claims by any person
(whether filed / verified / admitted or not, due or contingent,
crystallized or uncrystallised, known or unknown, secured or
unsecured, disputed or undisputed, present or future) against
the Corporate Debtor accruing due to the commencement or
pendency of insolvency proceedings against the Corporate
Debtor , whether arising under the terms of subsisting
consents, licenses, approvals, rights, entitlements benefits and
privileges whether under law, contract, lease or license,
granted in favour of the Corporate Debtor or any contractual
arrangements entered into by the Corporate Debtor shall
notwithstanding any provision to the contrary in their terms
stand extinguished without any resource.
31. Sub-clause (b) of Clause 16 of the resolution plan thus clarifies that
all consents, licenses, approvals, rights and entitlements, benefits, privileges
whether under law, contract, lease or license granted in favour of the
corporate debtor or to which the corporate debtor is entitled or accustomed
to shall notwithstanding any provision to the contrary in their terms be
deemed to continue without disruption for the benefit of the corporate
debtor. Thus, the use of terms 'entitled or accustomed to' are of wide
amplitude and ensure continuity of all benefits in favour of LHTPL to
continue with the defendant.
32. Further, Sections 60, 63, 231 and 238 IBC which are relevant to
ascertain as to whether the present dispute is required to be decided in this
suit or before the NCLT, read as under:
60. (1) The Adjudicating Authority, in relation to insolvency
resolution and liquidation for corporate persons including
corporate debtors and personal guarantors thereof shall be the
National Company Law Tribunal having territorial jurisdiction
over the place where the registered office of the corporate
person is located.
(2) Without prejudice to sub-section (1) and notwithstanding
anything to the contrary contained in this Code, where a
corporate insolvency resolution process or liquidation
proceeding of a corporate debtor is pending before a National
Company Law Tribunal, an application relating to the
insolvency resolution or bankruptcy of a personal guarantor of
such corporate debtor shall be filed before such National
Company Law Tribunal.
(3) An insolvency resolution process or bankruptcy
proceeding of a personal guarantor of the corporate debtor
pending in any court or tribunal shall stand transferred to the
Adjudicating Authority dealing with insolvency resolution
process or liquidation proceeding of such corporate debtor.
(4) The National Company Law Tribunal shall be vested
with all the powers of the Debt Recovery Tribunal as
contemplated under Part III of this Code for the purpose of
sub-section (2).
(5) Notwithstanding anything to the contrary contained in
any other law for the time being in force, the National
Company Law Tribunal shall have jurisdiction to entertain or
dispose of--
(a) any application or proceeding by or against the
corporate debtor or corporate person;
(b) any claim made by or against the corporate debtor or
corporate person, including claims by or against any of its
subsidiaries situated in India; and (c) any question of priorities
or any question of law or facts, arising out of or in relation to
the insolvency resolution or liquidation proceedings of the
corporate debtor or corporate person under this Code.
(6) Notwithstanding anything contained in the Limitation
Act, 1963 or in any other law for the time being in force, in
computing the period of limitation specified for any suit or
application by or against a corporate debtor for which an
order of moratorium has been made under this Part, the period
during which such moratorium is in place shall be excluded.
63. No civil court or authority shall have jurisdiction to
entertain any suit or proceedings in respect of any matter on
which National Company Law Tribunal or the National
Company Law Appellate Tribunal has jurisdiction under this
Code. Civil court not to have jurisdiction.
231. No civil court shall have jurisdiction in respect of any
matter in which the Adjudicating Authority is empowered by, or
under, this Code to pass any order and no injunction shall be
granted by any court or other authority in respect of any action
taken or to be taken in pursuance of any order passed by such
Adjudicating Authority under this Code.
238. The provisions of this Code shall have effect,
notwithstanding anything inconsistent therewith contained in
any other law for the time being in force or any instrument
having effect by virtue of any such law.
33. Sections 63 and 231 IBC create a bar on the jurisdiction of the civil
court in respect of any matter in which the NCLT and NCLAT has
jurisdiction under the IBC and the adjudicating authority under the Code is
competent to pass any order. Further, clause (c) sub-Section (5) of Section
60 IBC vests the jurisdiction in NCLT to entertain and dispose of any
question of priorities or any question of law or fact, arising out of or in
relation to the insolvency resolution for liquidation proceedings. Therefore,
the jurisdiction vested in NCLT while dealing with a resolution plan is of
wide ambit and any question of law or fact in relation to the insolvency
resolution has to be determined by the NCLT.
34. On consideration of the provisions of Section 60, 63, 231 and 238 of
the IBC, this Court in Liberty House Group (supra) following the decision of
the Hon'ble Supreme Court's reported as 2019 SCC OnLine SC 73, Swiss
Ribbons Pvt. Ltd. Vs. Union of India, held that the words used in the statute
are of vide amplitude and that the IBC was enacted to bring insolvency laws
in India under a single unified umbrella with the object of speeding up of the
insolvency process by reorganizing insolvency resolution of corporate
debtors in a time bound manner and by maximising the value of assets.
Therefore, IBC seeks to provide for designated NCLT thereby ousting the
jurisdiction of the Civil Court. It was held:-
"22. Supreme Court recently in Swiss Ribbons Pvt. Ltd. Vs.
Union of India 2019 SCC OnLine SC 73, while dealing with
the challenge to the constitutional validity of various
provisions of the Code, has reiterated (i) that till the Code
was enacted, the regime of previous legislation had failed to
maximize the value of stressed assets and had focused on
reviving the corporate debtor with the same erstwhile
management; all these legislations had failed, as a result of
which, the Code was enacted to reorganize insolvency
resolution of corporate debtors in a time bound manner, to
maximize the value of assets; (ii) there is a paradigm shift
from the erstwhile management of a corporate debtor being
in possession of the stressed assets, to creditors who now
assume control from the erstwhile management and are able
to approve resolution plans of other better and more
efficient managers, which would not only be in the interest
of the corporate debtor itself but in the interest of all
stakeholders namely all creditors, workers and shareholders
other than shareholdings of the erstwhile management; (iii)
past judgments have mandated a judicial hands-off when it
came to laws relating to economic regulation; (iv) the
Bankruptcy Law Reforms Committee in its Report dated 4 th
November, 2015 had reported that the current state of the
bankruptcy process was a highly fragmented framework,
with powers of the creditor and the debtor under insolvency
being provided for under different Acts; it is problematic
that these different laws are implemented in different
judicial fora giving rise to problems in implementation of
the resolution framework; there is lack of clarity of
jurisdiction, with decisions being appealed against; if
economic value is indeed to be preserved, there must be a
single forum that hears both sides of the case and makes a
judgment based on both; in such an environment of
legislative and judicial uncertainty, the outcomes on
insolvency and bankruptcy are poor; if we are to bring
financing patterns back on track with the global norm, we
must create a legal framework to make debt contracts
credible channels of financing; speed is of essence for the
working of the bankruptcy code - the longer the delay, the
more likely it is that liquidation will be the only answer, with
the liquidation value going down with time as many assets
suffer from a high economic rate of depreciation; (v) there
was thus a need to bring the insolvency law in India under a
single unified umbrella with the object of speeding up of the
insolvency process; laws relating to economic activities
should be viewed with greater latitude than laws touching
civil rights such as freedom of speech, religion etc.; the
legislature should be allowed some play in the joints,
because it has to deal with complex problems which do not
admit of solution through any doctrinaire or strait-jacket
formula and this is particularly true in case of legislation
dealing with economic matters; in the matter of economic
laws, the Court should feel more inclined to give judicial
deference to legislative judgment in the field of economic
regulation, than in other areas where fundamental human
rights are involved; (vi) while the legislature has affirmative
responsibility, the Courts have only the power to destroy,
not to reconstruct; (vii) the Court must always remember
that legislation is directed to practical problems, that the
economic mechanism is highly sensitive and complex, that
many problems are singular and contingent, that laws are
not abstract propositions and do not relate to abstract units
and are not to be measured by abstract symmetry; (viii)
every legislation, particularly in economic matters, is
essentially empiric and it is based on experimentation or
what one may call trial and error method and therefore it
cannot provide for all possible situations or anticipate all
possible abuses; there may be crudities and inequities in
complicated experimental economic legislation but on that
account alone it cannot be struck down as invalid; (ix) the
Court must defer to legislative judgment in matters relating
to social and economic policies and must not interfere,
unless the exercise of legislative judgment appears to be
palpably arbitrary; (x) the objective of the Code was to
consolidate and amend the laws relating to reorganization
and insolvency resolution of corporate persons, partnership
firms and individuals in a time-bound manner for
maximization of value of assets of such persons, to promote
entrepreneurship, availability of credit and balance the
interests of all the stakeholders including alteration in the
priority of payment of government dues; (xi) the Code seeks
to provide for designating NCLT and Debt Recovery
Tribunal as the Adjudicating Authorities for corporate
persons for resolution of insolvency, liquidation and
bankruptcy; (xii) Insolvency Professionals will assist in
completion of insolvency resolution, liquidation and
bankruptcy proceedings envisaged in the Code; (xiii) timely
resolution of a corporate debtor who is in the red, by an
effective legal framework, would go a long way to support
the development of credit markets; (xiv) Rule 11 of the
National Company Law Tribunal Rules, 2016 saves the
inherent powers of the NCLT to make such orders as may be
necessary for meeting the ends of justice or to prevent abuse
of the process of the Tribunal; (xv) once the Code gets
triggered by admission of a creditor's petition, the
proceeding i.e. before the NCLT, being a collective
proceeding, is a proceeding in rem and being a proceeding
in rem, it is necessary that the body which is to oversee the
resolution process must be consulted before any individual
corporate debtor is allowed to settle its claim; (xvi) till the
CoC is constituted, a party can approach the NCLT directly,
which may, in exercise of its inherent powers under Rule 11
of the NCLT Rules, allow or disallow an application for
withdrawal or settlement; this will however be decided after
hearing all the concerned parties; (xvii) vide Section 60 of
the Code, the CoC does not have the last word on the subject
of withdrawal; if the CoC arbitrarily rejects a just settlement
and/or withdrawal claim, the NCLT, and thereafter, the
NCLAT can always set aside such decision under Section 60
of the Code; (xviii) the RP has no adjudicatory powers; the
RP cannot act in a number of matters without the approval
of the CoC and which in turn decides by two-thirds
majority; the RP is really a facilitator of the resolution
process, whose administrative functions are overseen by the
CoC and by the Adjudicating Authority; (xix) the Statement
of Objects and Reasons of the Insolvency and Bankruptcy
Code (Amendment) Ordinance, 2017 amending the Code
w.e.f. 23rd November, 2017 records that the Code does not
restrict or bar any person from submitting a resolution plan
or participating in the acquisition process; concerns have
been raised that unscrupulous persons may participate in
the resolution process; in order to check that the
undesirable persons who may have submitted their
resolution plans in the absence of such a provision, it was
deemed appropriate to entrust the responsibility on the CoC
to give a reasonable period to repay overdue amounts and
become eligible; and, (xx) the legislature should be
permitted to experiment the Code with the working of the
code being monitored and amendments being carried out
thereto from time to time; this is an ongoing process and
should not be interfered with by the Court.
23. The reasons given me above are not controverted by the
aforesaid judgment; rather it supports my reasons. The
judgment also expressly negates the argument of the senior
counsel for the plaintiff, of jurisdiction of NCLT being
limited and the Code not providing for NCLT to be
approached in such matters.
35. Though there is a dispute between the parties on the aspect that in the
absence of any assignment or a license issued in favour of LTHPL by the
plaintiff how the benefit of such a license issued in favour of LIL could
extend to the LTHPL however, neither party has filed the terms of
agreement between LIL and LTHPL to clarify this aspect. However, as
noted above, plaintiff has stated in the plaint that LTHPL was a SPV of LIL
and that the Teesta VI Project was awarded to LTHPL. It is also the case of
the plaintiff that the drawings and data were used for Teesta VI Project as is
also evident from the agreement dated 18th May, 2009 between plaintiff and
LIL. Further, as per the resolution plan, dispute of the entitlement to the
licenses or the benefit/privilege under the contract or license to which the
corporate debtor is entitled or accustomed notwithstanding any provision to
the contrary is a provision of wide amplitude and the disputes raised
between the party would fall in relation to this right if that accrues in favour
of the defendant. Thus the dispute raised in the present suit falls within the
ambit of Section 60 (5) IBC as the same arises out of and/or is in relation to
the insolvency resolution plan of LTHPL hence has to be adjudicated by the
NCLT and the proceedings in the civil court are barred.
36. Learned counsel for the plaintiff vehemently contends that the license
for the use, if any, by the plaintiff of his copyright in the drawings and data
including the confidential data was given in favour of LIL. LIL without any
written permission of the plaintiff could not have passed on the said data to
LTHPL or to the defendant and even if passed down, in the absence of any
written assignment or the license, the user thereof by the defendant is illegal.
The contention of learned counsel cannot be decided in the present
proceedings in the absence of LIL and LTHPL being parties. In the absence
of the said two parties it cannot be determined how the rights of use with
LIL were transferred to LTHPL or whether the plaintiff had consented to the
same. Thus the present suit would also be not maintainable in the absence
of necessary parties LIL and LTHPL. It appears that LIL has deliberately not
been made a party as the very impleadment of the LIL which has gone into
liquidation would have ousted the jurisdiction of this Court to entertain the
present suit. Even assuming that LTHPL had wrongly usurped or was
infringing the copyright of the plaintiff in the drawings which is not the case
of the plaintiff in the present suit, the defendant‟s right to use cannot be
decided in the present proceedings.
37. In view of the discussion aforesaid, the present suit and application
are dismissed as not maintainable before this Court in view of Sections 230
and 231 read with Section 60(5) of the Insolvency and Bankruptcy Code.
38. Order be uploaded on the website of this Court.
(MUKTA GUPTA)
JUDGE
JUNE 26, 2020
'vn'
