Delhi District Court
Rajeev Saumitra vs Ms. Neetu Singh on 15 September, 2015
IN THE COURT OF SH. SATISH KUMAR: ADJ2,
NORTH, ROHINI COURTS, DELHI.
CS NO.217/15
Rajeev Saumitra
Founder and Director
M/s Paramount Coaching Centre Pvt. Ltd.
st
704, 1 Floor,
Dr. Mukherjee Nagar, Delhi110009 ......Plaintiff
Vs.
1. Ms. Neetu Singh, Director,
M/s Paramount Coaching Centre Pvt. Ltd.
st
704, 1 Floor, Dr. Mukherjee Nagar, Delhi110009.
2. M/s Paramount Reader Publication O.P.C. Pvt. Ltd.
Office at 701, Dr. Mukherjee Nagar, Delhi110009
3. M/s Paramount Coaching Centre Pvt. Ltd.
st
704, 1 Floor, Dr. Mukherjee Nagar, Delhi110009
......Defendants
ORDER ON THE APPLICATIONS UNDER ODER XXXIX
RULE 1 & 2 OF C.P.C. & U/o VII rule 11 (a) & (d)
r.w.o. II rule 2 of CPC.
Present: Sh. P.V. Kapur, Sr. Advocate for the plaintiff
with advocate Ms. Jyoti Goyal, Sh. Rahul
Kumar, Ms. Divya Kapur, Sh. Sidhant Kapur,
Sh. V.K. Nagrath and Mr. Abhay Verma.
CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 1 of 28
Ms. Geeta Luthra Ld. Sr. Advocate for the
defendant No.1 & 2 with Advocate Kumar
Sushobhan, Sh. Imran Ahmad, Sh. Vikram
Khanna and Ms. Shreya Singh.
ORDER:
1. By this order I shall decide the applications U/o XXXIX rule 1 and 2 of CPC of the plaintiff as well as another application U/o VII rule 11 (a) & (d) r.w.o. II rule 2 of CPC of the defendant No.1 and 2.
2. That, to decide all these applications, the brief material facts of this suit are that the plaintiff has filed suit for declaration, rendition of account, permanent injunction and for damages whereby it has been stated that plaintiff is the founder and Director of M/s Paramount Coaching Center Pvt. Ltd. having its registered office at 704, First Floor, Dr. Mukherjee Nagar, New Delhi and defendant No.3 is a Pvt. Ltd. Company and running an educational institute in the name and style of M/s Paramount Coaching Center.
3. That, the plaintiff is a 50% share holder of defendant No.3 and filed the present suit in a CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 2 of 28 representative capacity on behalf of defendant No.3 for the reason that the defendant No.3 is unable to institute the present action in its own name and the plaintiff and defendant No.1 are equal share holders in the defendant No.3 company. That, the defendant No.1 is involved in the wrong doing and knowing to the fact that she also holds 50% shares in the M/s Paramount Coaching Center Pvt. Ltd. who is defendant No.3 herein. And the defendant No.3 is prevented from passing any resolution to institute any suit in its own name and the defendant No.1 is a wrong doer against the defendant No.3 and she is acting malafide for her personal interest. The plaintiff has also institute the present suit in its own capacity as a share holder and for violation of his individual membership rights that arise from a contract between the plaintiff and the defendant No.3 by virtue of its memorandum of association and article of association.
4. That, the company M/s Paramount Coaching Center Pvt. Ltd. is having two directors of 50% share each who is the plaintiff as well as defendant No.1 and is CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 3 of 28 engaged in imparting eduction, training, consultancy for engineering, medical, para medical, dental, nursing, marketing managing, computer software, hardware, information technology and other type of education for preparing of competitive examination in its field.
5. That, the defendant No.1 is the wife of the plaintiff and is also having 50% share and director of the defendant No.3 and there was mutual understanding between the plaintiff and the defendant No.1 that neither the plaintiff nor the defendant No.1 would carry out any separate business in the field of education, training, consultancy for engineering, medical, para medical, dental, nursing, marketing managing, computer software, hardware, information technology and other type of education for preparing of competitive examination nor anyone of them would use the name "Paramount" and this name shall be used jointly. That, with the best effort of the plaintiff, the business of the defendant No.3 has increased manifold since its incorporation and the name "Paramount" has attained great reputation and goodwill CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 4 of 28 among the students who are preparing for competitive examination.
6. That, the relation between the plaintiff and the defendant No.1 have become strained for the last about one year and it has come to the notice of the plaintiff that the defendant No.1, in breach of her fiduciary duty, started the similar business in the name and style of "M/s Paramount Readers Publication" i.e. defendant No.2 herein for herself gain and also engaged in publication of books, periodicals, journals and providing online publication in the field of education and competitive examination and defendant No.3 has already been publishing books and study material for its student which the defendant No.1 and 2 have hijack and started printing, publishing and selling under their name without any resolution of defendant No.3.
7. That, the defendant No.1 and 2 also illegally and unlawfully selling books as well as online service in the field of education and competition examination in the name of "Paramount" and that is the breach of fiduciary CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 5 of 28 duty and defendant No.1 and 2 are doing the similar business illegally and with a view to cause wrongful loss to defendant No.3 and illegal gain to the defendant No.1 and 2.
8. That, the present suit has been filed with the prayer in the application U/o XXXIX rule 1 and 2 of CPC that: The defendant No.1 and 2 may kindly be restrained from using the initial name "Paramount" from M/s Paramount Coaching Center Pvt. Ltd. for their personal and individual benefits, for their personal publication of books, journals including "Paramount Reader Publication" books in the name of "Paramount" Test Series and other book and using the name of "Paramount" such as English, Arithmetic, SSC TierI, SSC TierII, SSC CGL, Biology, Chemistry, Banking, Interview and in all printed and online material and other material either in the form of books, journals or in the form of "Soft Copy" or in "Online Material" and further the defendant No.1 and 2, its agents, successors, CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 6 of 28 employees may kindly be restrained from indulging in any competitive business against the interest of the plaintiff and the defendant No.3 till the disposal of this suit.
9. That, upon notice of this suit the written statement has not been filed by the defendant No.1 and 2 but has filed the reply of the application U/o XXXIX rule 1 and 2 of CPC with the application U/o VII rule 11 (a) &
(d) r.w.o. II rule 2 of CPC.
10. It is stated by defendant No.1 and 2 in the reply of the interim application as well as in the application U/o VII rule 11 (a) & (d) r.w.o. II rule 2 of CPC that suit of the plaintiff is liable to the rejected U/o VII rule 11 (d) of CPC as the suit is barred U/o II rule 2 of CPC and there is no cause of action has ever been arose in favour of the plaintiff and against the defendant No.1 and 2 and the present suit has been filed without withdrawing the previous instituted suit No.78/2015 and no liberty has been sought by the plaintiff to institute the present suit.
11. It is also stated by defendant No.1 and 2 in the CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 7 of 28 application under consideration that the suit of the plaintiff is without any cause of action as the plaintiff has no exclusive right over word "Paramount" as the word is a common dictionary one and is also descriptive or generic and as per Sec.291 of the Companies Act, all powers are lying with the Board of Directors and without specific resolution of the board, the individual director cannot institute the suit and the suit of the plaintiff is also barred by the provisions of Sec.10 GB, 397/398 of the Companies Act and this court has also no jurisdiction to try and entertain the present suit and the same is liable to be dismissed.
12. Having heard the arguments advanced by Ld. Sr. Counsel Sh. P.V. Kapur for the plaintiff and Ms. Geeta Luthra for the defendant No.1 and 2, this court is of the considered view that so far as the application U/o VII rule 11 (a) & (d) r.w.o. II rule 2 of CPC of defendant No.1 and 2 is concerned, the same is without any merit and not maintainable, inasmuch as, as per the provisions of U/o VII of CPC, the court has to see only the averments CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 8 of 28 made in the plaint and not the defence raised by the defendant in the application U/o VII rule 11 of CPC. That, Ld. counsel for the defendant No.1 and 2 has relied upon the case law Deepa Dua Vs Tejender Kumar Muteneja decided by the Hon'ble High Court of Delhi on 22.08.13 and perusal of the case law it reveals that the same is on the facts that a suit for partition, declaration and permanent injunction was filed and the suit for permanent injunction was also earlier filed. But in this case, the facts are entirely different and the case law as cited by the Ld. counsel for the defendant No.1 and 2 is not applicable in the given facts and circumstances. Inasmuch as the plaintiff has earlier filed the suit for declaration, rendition of account, permanent injunction and damages against the defendant No.1 herein and in that suit, the injunction application of the plaintiff U/o XXXIX rule 1 and 2 of CPC was allowed in favour of the plaintiff and against the defendant No.1 and against that order the defendant No.1 has preferred an Appeal i.e. FAO 244/2015 and C.M. No.14054/2015 (Stay) titled as "Neetu Singh Vs CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 9 of 28 Rajeev Saumitra" and vide order dt.14.08.15 passed by Hon'ble High Court of Delhi, the plaintiff was impressed upon to make and implead the company i.e. M/s Paramount Coaching Center Pvt. Ltd. as defendant and an application for withdrawal of that suit was filed and there was a direction to this court from Hon'ble High Court of Delhi to pass appropriate order on the application of withdrawal of that suit on 17.08.15 and on the very same day the application U/o 23 rule 1 of CPC of the plaintiff was allowed and the previous instituted suit of the plaintiff was dismissed as withdrawn and present suit has been taken up and registered as newly instituted suit as assigned by the Hon'ble Ld. District Judge, North District, Rohini Courts, Delhi.
13. It is argued by Ld. counsel for the defendant No.1 and 2 that without seeking liberty of this court the fresh suit is not maintainable and this court has not applied its judicial mind to give the liberty to the plaintiff to file the fresh suit and no notice of the application of withdrawal of the previous suit was given to the defendant No.1 and 2. This argument of Ld. counsel for the defendant No.1 and 2 CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 10 of 28 is immaterial and cannot be substantiated in the provisions of law inasmuch as on 14.08.2015 when the order was passed by the Hon'ble High Court of Delhi then the same was passed in the presence of Ld. Counsel for the defendant No.1 and 2 and if in the Hon'ble High Court of Delhi the counsel for the plaintiff has submitted that he has moved an application for withdrawal of the suit and has filed the fresh suit by impleading M/s Paramount Coaching Center Pvt. Ltd. as a defendant and the Hon'ble High Court of Delhi has directed this court to decide the application of withdrawal of the suit on 17.08.15. Then this court is duty bound to decide the application of withdrawal of the suit and in compliance of the order of the Hon'ble High Court of Delhi, this court has decided the withdrawal application on the very same date and the previous instituted suit of the plaintiff was dismissed as withdrawn and so far as application for withdrawal of the suit as mentioned in the Hon'ble High Court of Delhi is concerned then there is no need or requirement of law to issue the notice of withdrawal of the suit application to the opposite party as the order was passed in the presence of the CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 11 of 28 counsel for the defendant No.1 and 2 in the Hon'ble High Court of Delhi.
14. That, Ld. counsel for the defendant No.1 and 2 has also relied upon the case law Salim Bhai & Ors. Vs State of Maharashtra Civil Appeal No.8518 of 2002 decided on 17.12.02 by the Hon'ble Supreme Court of India. Perusal of this case law it reveals that it is a settled law that for deciding the application U/o VII rule 11 of CPC, the averments made in the plaint only germane and the court can exercise the power U/o VII rule 11 (a) & (d) of CPC at any stage and so far as the averments made in the plaint are concerned, this court is of the considered view that the plaintiff has made an averment in respect of the cause of action and it has been specifically mentioned that despite repeated requests the defendant No.1 and 2 have not stopped to use the name of "Paramount" even despite service of Legal Notice dt.20.12.14 and as per the provisions of law, this court is of the considered view that the cause of action is a bundle of facts and the plaint cannot be rejected on the basis of the allegation made by the defendant in his WS or in an application for rejection of the plaint. The CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 12 of 28 court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if, it discloses, then the plaint cannot be rejected by the court by exercising power U/o 7 rule 11 of CPC. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct; reliance is placed upon Mayar (H.K.) Ltd. V. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828. Therefore, the application U/o VII rule 11 (a) & (d) r.w.o. II rule 2 of CPC of the defendant No.1 and 2 is without any merit, hence the same is hereby dismissed.
15. That, to come up on the application U/o XXXIX rule 1 and 2 of CPC of the plaintiff.
16. It is argued by the Ld. counsel for the defendant No.1 and 2 that this court has no jurisdiction to try and entertain the present suit and only the Company Law Board is having the jurisdiction to pass any order to decide the interse dispute between the directors of a company. Ld. counsel for the defendant No.1 and 2 has also argued CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 13 of 28 that Company Law is a special statute and that is having the over ride affect to the general statute and also relied upon the case laws:
1. Das Lagervay Wind Turbines Ltd. Vs Cynosure Investments Pvt. Ltd. CRP No.1050 of 2003 decided on 21.03.2007 of Madras High Court,
2. Pastine India Ltd Vs Kasturi & Sons Ltd CMA No.1200 of 2006 decided on 28.06.06 by High Court of Madras,
3. Skyline Education Institute (India) Pvt. Ltd. Vs S.L. Vaswani & Anr. (2010) 2 Supreme Court Cases 142,
4. Living Media India Ltd. & Anr. Vs Alpha Dealcom Pvt. Ltd. and Ors. IA No.21490/2012 in CS (OS) 3350/2012 decided on 19.02.14,
5. Chronicle Publications (P) Ltd. Vs Chronicle Academy Pvt. Ltd. 2010 (118) DRJ 319 of High Court of Delhi.
6. Maya Appliances Pvt. Ltd. Vs M/s Pigeon Appliance Pvt. Ltd. 2004 (4) CTC 334 of High Court of CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 14 of 28 Madras.
7. Ferruccio Sias & Anr. Vs Sh. Jai Mange Ram Mukhi & Ors. Of 2146/93 decided on 09.11.93 by the High Court of Delhi.
17. Ld. counsel for the defendant No.1 and 2 has also argued that the Chronicle Publication is relevant case law and "Paramount Coaching is different then the Paramount Readers" and the court has no power to pass an injunction order U/s 166 of the Company Law Act. It has also been argued that there is no resolution of the company in favour of the plaintiff to file the present suit and the injunction application of the plaintiff is without any merit and the same is liable to be dismissed.
18. That, the afore stated case laws as cited by Ld. counsel for the defendant No.1 and 2 are not applicable in the present facts and circumstances of this suit. Inasmuch as the facts and circumstances of this suit are entirely different as discussed in the cited case laws. As most of the case law was related to the copy right and trade mark cases but the present suit is not of the case of trade mark or copy right.
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19. Ld. counsel for the plaintiff has argued that Sec. 10 GB of Companies Act is not applicable in the given facts and circumstances inasmuch as the same has been declared as unconstitutional by the Hon'ble Supreme Court of India and there is no possibility to pass any resolution by the another director/share holders as there are only two directors in the company M/s Paramount Coaching Center Pvt. Ltd. It has also been argued by Ld. counsel for the plaintiff that U/s 166 of the Company Act the relief which is sought by the plaintiff in the application under consideration, cannot be granted by the company law board against the third party and it is the Civil Court who is having the jurisdiction to grant an injunction against the coshare holders as well as against the another director. Ld. counsel for the plaintiff has also relied upon the case law Starlight Real Estate Vs Jagriti Trade Services GA No.2437 of 2014 and CS No.284/2014 decided on 14.05.15 by the High Court of Calcutta, whereby it has been held by their lordship that to examine the merits of the application are that company actions, in the wide sense including by and on behalf of the company and also actions CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 16 of 28 by share holders have always been considered to be a vexed question in company law and the principal of derivative action as enumerated in various judgments and treaties on the subjects of which special reference can be made to company actions in the modern setup.
"(a) Action by the Company - for enforcement of Company's rights.
(b) Derivate actions - i.e., actions by shareholders for enforcement of the Company's rights (as distinguished from class rights of shareholders).
(c) Representative action - i.e., actions by shareholders for enforcement of their class or corporate rights.
(d) Personal actions by shareholders - for enforcement of their personal rights."
20. In an action for violation of personal rights, a single share holder suing alone and not even on behalf of other share holders may make the company a defendant and obtained his reliefs. Where a wrong has been done to the company and an action is brought to restrain its continuance or to recover the companies property or damages or compensation due to it, it is a derivative action. CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 17 of 28 Hence the company is the only true plaintiff. The dispute is not an internal one between those who constitute the membership of the company but one between the company on the one hand and third party on the other. It makes no difference in principal that the third party may accidentally happen to be the directors or controlling share holders of the company. Foss Vs Harbottle itself is an illustration of such an action. Where such an action is allowed the member is not really suing on his own behalf nor on behalf of the members generally but on behalf of the company itself. In a derivative action. In the framing of the suit for the purpose of compliance of the formalities the plaintiff had to describe himself as a representative suing for and on behalf of all the members other than the wrong - doers. In a true derivative action, the plaintiff share holder is not acting as a representative of the other share holders but is really acting as a representative of the company. The expression "Derivative Action" was basically borrowed from the United State
21. In a derivative action, the company would be the only party entitled to sue for redressal of any wrong done to CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 18 of 28 it. However, since a company is an artificial person, it must act through its directors. Where the wrong is being done to the company by the directors in control, the company obviously cannot take action on its own behalf. It is in these circumstances that the derivative action by some share holders (even if they are in a minority) becomes necessary to protect the interest of the company.
22. This case law as cited by the Ld. counsel for the plaintiff and also relied upon by the court itself is a very relevant case law and is applicable on the given facts and circumstances of this suit inasmuch as there are two directors of 50% share holders of M/s Paramount Coaching Center Pvt. Ltd. i.e. the plaintiff and the defendant No.1 herein and if one director of having 50% share holder who is the plaintiff herein has filed the suit against the defendant No.1 who is also another director and is also having 50% share and there is a interse dispute then there is no possibility to pass a resolution by both the directors to file a suit.
23. That, the case law as relied upon by the defendant No.1 and 2 are altogether different and are not CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 19 of 28 applicable in the given facts and circumstances. Inasmuch as all the case laws cited by the Ld. counsel for the defendant No.1 and 2 are talks about the companies dispute against the third party whereas in this suit the plaintiff as well as the defendant No.1 are the husband and wife and also the directors in M/s Paramount Coaching Center Pvt. Ltd. of 50% share each and this is the dispute among the two directors themselves.
24. It is argued by the Ld. counsel for the plaintiff that the defendant No.1 is using the name "Paramount" as Paramount Reader Publication Pvt. Ltd. and also cause great loss to the plaintiff company to which the defendant No.1 is also the director and the defendant No.1 may kindly be restrained to use the name "Paramount" in the Paramount Reader Publication Pvt. Ltd. till the disposal of the present suit.
25. Having heard the arguments advanced by the Ld. counsel for the parties and perusal of the case file this court is of the considered view that the plaintiff has a good primafacie case in his favour and against the defendant No. 1 and 2 inasmuch as the submission made by the Ld. CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 20 of 28 counsel for the defendant No.1 and 2 that the name Parmount Coaching Center was coined by the defendant No.1 herself way back in the year 1993 but the company was formed in the name of M/s Paramount Coaching Center Pvt. Ltd. in the year 2009 is itself self contradictory inasmuch as the defendant No.1 and 2 has not placed on record any documentary proof to show that the defendant No.1 was running her business in the name M/s Paramount Coaching Center Pvt. Ltd. before 2009 by her own. Whereas the plaintiff has placed on record the certificate of incorporation of dt.08.12.09 whereby M/s Paramount Coaching Center Pvt. Ltd. was acknowledged and registered by the Registrar of Companies.
26. The argument of Ld. counsel for the defendant No.1 and 2 that the defendant No.1 was running a business under the name "Paramount Coaching Center Pvt. Ltd." and the plaintiff was included as Director in Paramount Coaching Center Pvt. Ltd. and was given 50% share in the said company by the defendant No.1 by alivating him to the position of director in good faith out of love and moreover as a life partner. This argument is also without any merit CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 21 of 28 inasmuch as the certificate of incorporation filed by the plaintiff itself shows that name, address, description itself show that there are two names Rajeev Saumitra who is plaintiff herein and Neetu Singh who is defendant No.1 herein as Directors and the name of Rajeev Saumitra is at Sr. No.1 whereas the name of Neetu Singh is at Sr. No.2 and if the defendant would have been made or inducted as director the plaintiff in the Paramount Coaching Center Pvt. Ltd. then his name would be reflected at Sr. No.2 in the name of the Board of Directors.
27. That, the arguments of the Ld. counsel for the defendant No.1 and 2 that the plaintiff is only a sleeping partner and the Paramount Coaching Center is known by the name of the defendant No.1 rather the defendant No.1 being known by the name of Paramount Coaching Center is also immaterial and without any force of law inasmuch as, as per the certificate of incorporation it has no where been mentioned that the plaintiff is a sleeping partner rather his name is mentioned as director at Sr. No.1 in the name of the Board of Directors and the name of the defendant No.1 is mentioned at Sr. No.2.
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28. It is pertinent to mention that the defendant No. 1 herself has admitted that the plaintiff is having the 50% share of M/s Paramount Coaching Center Pvt. Ltd. and the same is registered with the registrar of the companies 08.12.09 and the registration of Paramount Reader Publication Pvt. Ltd. is of 29.01.2015. That, the documents as well as the photographs which has been placed on record by the plaintiff shows that the defendant No.1 is using the name of the M/s Paramount Coaching Center Pvt. Ltd. and is causing great loss to the plaintiff as well as to the goodwill of the M/s Paramount Coaching Center Pvt. Ltd. without the prior consent of the plaintiff and also without any valid resolution passed by both the directors of the company and the same is not permissible in the eyes of law.
29. That, as per the provisions of law where two directors in a company and both are having 50% share each then none of the director is authorised to do the same business without the consent of the other one, which cause the loss or injury or the goodwill to the business of that company where both parties are having the same shares. CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 23 of 28
30. That, the Primafacie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which need investigation, consideration and adjudication.
31. That, the plaintiff has also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant of refusal of relief of injunction. The plaintiff is also satisfy the court that non interference by the court would result in a irreparable injury and that there is no other remedy available to him except on i.e. the grant of injunction in his/her favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages.
32. That, the argument of the Ld. counsel for the defendant No.1 and 2 that as per the companies act this court has no jurisdiction to try and entertain the present suit or to pass any order on the interim application of injunction is immaterial and without any force of law CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 24 of 28 inasmuch as the company law board is having the jurisdiction in respect of the company matters but so far as injunction is concerned then the Civil Court is having the jurisdiction to try and entertain the Civil suits as well as the applications. As per Sec.9 of Code of Civil Procedure confers Jurisdiction upon the Civil Court to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of Jurisdiction of Civil Court is not be readily inferred. A provision seeking to bar jurisdiction of Civil Court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the Civil Court. The burden of proof in this behalf shall be on the party who asserts that the Civil Courts jurisdiction is ousted.
33. Reliance is placed upon Sahebgouda (Dead) by LRs and Ors. Vs Ogeppa and Ors. (2003 (3) Supreme
13).
34. Even otherwise, the Civil Courts Jurisdiction is CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 25 of 28 not completely ousted under the Companies Act 1956 reliance is placed upon Dwarka Prasad Aggarwal Vs. Ramesh Chand Aggarwal & Ors. decided by Hon'ble Apex Court of India on 07.07.2003 by the bench headed by Hon'ble Chief Justice of India.
35. That, the plaintiff is having the balance of convenience in his favour and against the defendant inasmuch as the defendant No.1 herself has admitted that the plaintiff is also having 50% share in M/s Paramount Coaching Center Pvt. Ltd. and no consent of the plaintiff has been obtained by the defendant No.1 to run the similar business in the name of M/s Paramount Reader Publication Pvt. Ltd. and the defendant No.1 & 2 are having no right to cause any harm to the business of M/s Paramount Coaching Center Pvt. Ltd. or to cause harm or to spoil the goodwill of M/s Paramount Coaching Center Pvt. Ltd.
That as per the Sec.166 (5) of the Companies Act says that "A director of a company shall not achieve or attempt to achieve any undue gain or CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 26 of 28 advantage either to himself or to his relative, partners, or associates and if such director is found guilty of making any undue gain he shall be liable to pay an amount equal to that gain to the company.
Sec. 166 (2) of Companies Act "A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interest of the company, its employees, the share holders, the community and for the protection of environment.
36. That the plaintiff shall also suffer an irreparable loss and injury and the same cannot be compensated in any terms, if, this court decline the injunction to the plaintiff.
37. Therefore, the application of the plaintiff under consideration is hereby allowed and the defendant No.1 and CS NO.217/15 Rajeev Saumitra Vs Neetu Singh & Ors. Page No. 27 of 28 2 are hereby restrained from using the initial name "Paramount" from M/s Paramount Coaching Center Pvt. Ltd. for their personal and individual benefits, for their personal publication of books, journals including "Paramount Reader Publication" books in the name of "Paramount" Test Series and other book and using the name of "Paramount" such as English, Arithmetic, SSC TierI, SSC TierII, SSC CGL, Biology, Chemistry, Banking, Interview and in all printed and online material and other material either in the form of books, journals or in the form of "Soft Copy" or in "Online Material" and further the defendant No.1 and 2, their agents, successors, employees are hereby restrained from indulging in any competitive business against the interest of the plaintiff and M/s Paramount Coaching Center Pvt. Ltd. i.e. the defendant No. 3 till the disposal of this suit.
38. Nothing stated herein above shall tantamount to expressing any opinion on the merits of this case.
Announced in the open (Satish Kumar)
Court on 15.09.15 ADJ02, North, Rohini Courts,
Delhi.
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