Calcutta High Court
Quick Heal Technologies Ltd vs Ncs Computech Ltd. & Ors on 12 February, 2018
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD-8
GA No. 4077 of 2017
GA No. 4078 of 2017
APO No. 579 of 2017
In
CS No. 54 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
QUICK HEAL TECHNOLOGIES LTD.
Versus
NCS COMPUTECH LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 12th February, 2018.
Appearance:
Mr. Mainak Bose, Adv.
Mr. Pratik Shanu, Adv.
Mr. Anubhav Sinha, Adv.
Ms. Arunima Lala, Adv.
Mr. Chiranjib Sinha, Adv.
The Court : In view of the good grounds shown, the marginal delay in
preferring the appeal is condoned.
The appeal is directed against an order rejecting an application for revoking
the leave obtained by the plaintiff under Clause 12 of the Letters Patent at the
time of institution of the suit.
The claim is in damages. The plaintiff has alleged in the plaint that an oral
agreement was entered into between the plaintiff and the first defendant for the
plaintiff to distribute the first defendant's know-how and products in several
States. It has been subsequently alleged in the plaint that due to the acts of
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breach of the first defendant committed within jurisdiction, the plaintiff has
suffered loss and damage.
The principal ground urged by the first defendant appellant is that the
plaint does not disclose any particulars of where and how the oral agreement may
have been entered into between the plaintiff and the appellant and what breaches
had been committed at which place within the jurisdiction of this Court for the
authority of this Court to be invoked.
The trial Court has gone on the traditional and judicially accepted basis
that the allegations in the plaint have to be accepted as correct in considering
whether the suit could have been instituted in this Court.
On a query from the Court, the plaintiff agrees that a preliminary issue
may be framed at the trial to first ascertain whether any part of the plaintiff's
cause of action had arisen within the jurisdiction of this Court for the suit to be
filed here. The plaintiff also agrees that if such issue is answered against the
plaintiff, the plaint relating to the suit may be returned and the court may abstain
from going into the further issues and leave the plaintiff free to carry the action to
the appropriate forum. The appellant says that if such direction were to be issued
in this appeal, the appellant will also be satisfied at this stage and press the
appellant's case in course of such preliminary issue being decided.
The appellant indicates that the appellant has also applied under Section 8
of the Arbitration and Conciliation Act, 1996 for the reference of the disputes to
arbitration on the strength of an arbitration agreement between the parties. The
plaintiff asserts that the ambit of the suit is such that the disputes covered
thereby may not be covered by such arbitration agreement. Such petition under
Section 8 of the said Act has to be decided.
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In the event, the petition under Section 8 of the said Act is decided against
the appellant herein and the suit is directed to continue, the first respondent will
be entitled to seek a direction from the suit Court for the expeditious filing of written statements so that the preliminary issue can be taken up by the suit Court without undue delay.
Since Advocate originally representing the plaintiff has furnished a no- objection certificate, the affidavit of competency and vakalatnama filed by present Advocate for the plaintiff be accepted by the department.
It is made clear that in the event the preliminary issue is decided against the plaintiff, the suit Court will not be required to go into the further issues and the suit Court will leave the plaintiff to carry the suit to the appropriate forum in accordance with law.
APO No.579 of 2017 along with GA No.4077 of 2017 and GA No.4078 of 2017 are disposed of without any order as to costs.
(SANJIB BANERJEE, J.) (SABYASACHI BHATTACHARYYA, J.) kc