Delhi High Court
Huntsman International (India) ... vs Abiss Textile Solutions Private ... on 21 February, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st February, 2018.
+ CS(COMM) 619/2016 , IA No.6583/2016 (u/O XXXIX R-1&2
CPC), IA No.8693/2016 (u/O VII R-11 CPC), IA No.8696/2016
(u/O XXXIX R-2A CPC) & IA No.13379/2016 (u/O XXXIX R-
2A CPC)
HUNTSMAN INTERNATIONAL (INDIA)
PRIVATE LIMITED ..... Plaintiff
Through: Mr. Sudhir Chandra, Sr. Adv. Mr.
Rajiv Nayar, Sr. Adv., Mr. Darpan
Wadhwa, Sr. Adv. with Mr.
Shravan Sahay, Mr. Nakul Gandhi,
Mr. Anupam Prakash Ms. Aditi
Mohan , Mr. Toyesh, Mr. V.K. Rao
and Mr. Rajat Wadhwa,
Versus
ABISS TEXTILE SOLUTIONS PRIVATE LIMITED
& ORS ..... Defendants
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr. Soumya Kumar, Mr. Sanyam
Khetarpal, Mr. Sanjeevi, Mr.
Kanwal Chaudhary, Mr. Armaan
Grover, Advs. for D-1 to 4.
Mr. Roshan Santhalia, Adv. for D-
5,6,8,9,10,11,12,13 and 15.
Mr. Siddharth Khattar, Mr. Adil
Khan and Mr. Vikas Sharma, Advs.
for D-13.
Mr. Sachin Gupta and Ms. Surbhi
Grover, Advs. for D-14.
CS(COMM) No.619/2016 Page 1 of 21
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit against as many as fifteen
defendants, namely (i) Abiss Textile Solutions Private Limited; (ii) Shree
Pushkar Chemicals & Fertilisers Limited; (iii) Gautam Gopikishan
Makharia; (iv) Puneet Gopikishan Makharia; (v) Ajay Kanwar; (vi)
Biswaranjan Mukherjee; (vii) Syed Mohammad Ismail; (viii) Satin Raina;
(ix) Manoj Mehta; (x) Tirtha Ghosh; (xi) Sunil Kondre; (xii) Sunil Patil;
(xiii) Sumit Sethi; (xiv) Gaurav Ahuja; and, (xv) Viney Pandita, for the
reliefs of (a) permanent injunction restraining disclosure and use of
confidential and proprietary information of the plaintiff including for
manufacturing, marketing and selling any product as being manufactured
by the plaintiff; (b) mandatory injunction directing the defendants to
reveal the particulars of the third parties to whom the defendants have
parted with or revealed the confidential information of the plaintiff; (c)
mandatory injunction directing the defendants to return to the plaintiff all
such confidential and proprietary information; (d) mandatory injunction
directing the defendants to destroy confidential and proprietary
information of the plaintiff in their possession which is incapable of being
returned to the plaintiff; (e) restraining the defendants from manufacturing
the dyes; and (f) recovery of Rs.3,00,00,000/- for causing wrongful loss to
the plaintiff.
2. This suit came up before this Court first on 24 th May, 2016, when
while issuing summons thereof and notice of the application for interim
CS(COMM) No.619/2016 Page 2 of 21
relief and issuing commission to visit the premises of the defendants to
seize the infringing goods, it was inter alia ordered as under:-
"4. The case of the plaintiff is that the plaintiff
is a market leader and is engaged in the business of
producing colour dies for textiles. Defendant No.2
has been a supplier of raw materials to the plaintiff,
of which the defendants No.3 & 4 are the partners.
5. The further case of the plaintiff is that defendants
No.2,3 & 4 entered into a collaboration agreement
with the plaintiff so as to develop certain products
and entered into confidentiality agreement in respect
of the information derived by them under the
collaboration agreement. Defendants No.5 to 15 are
the ex-employees of plaintiff.
6. The case of the plaintiff is that on account of
collusion between defendants No.2&3 on the one
hand, and defendants No.5 to 15 on the other hand,
confidential and proprietary information of the
plaintiff in relation to its technology, know-how and
trade secrets have been passed on unauthorisedly by
defendant No.5 to 15 to defendant No.1, which has
been set up as an entity to compete with the plaintiff
by exploiting the said confidential information. In
this regard, the plaintiff has placed on record a
large number of documents, including e-mail
communications exchanged inter se the defendants.
7. Learned senior counsel for the plaintiff points out
that the defendants are planning to launch their
products developed by stealing the confidential
information of the plaintiff within this month.
CS(COMM) No.619/2016 Page 3 of 21
8. Defendant no.1 has been promoted by defendants
No.3 & 4. The e-mail communications sent, inter
alia, by defendant No.5 and the other defendants
inter se between themselves shows that information
relating to the plaintiff has been transmitted for
setting up and advancement of the business of
defendant No.1.
9. Dr. Singhvi has pointed out that defendants No.5
to 15 entered into service contracts with the plaintiff,
whereunder they are bound by a confidentiality
clause. However, the said agreements also stipulate
that disputes arising out of the service contracts
shall be adjudicated at Bombay. Dr. Singhvi submits
that the plaintiffs are not enforcing the said
confidentiality clause in the present suit, and it is the
confidential agreement entered into between the
plaintiff and defendants No.2,3 &4, which the
plaintiff is seeking to enforce in the present suit.
10. The plaintiffs have made out a prima facie
case and the balance of convenience is in favour of
the plaintiff. The plaintiff would suffer irreparable
injury unless the defendants are restrained as prayed
for. Accordingly, the defendants are restrained in
terms of prayer „A‟ of I.A. No.6583/2016 till the next
date of hearing."
3. The prayer 'A' of IA No.6583/2016 was to restrain the defendants
inter alia from manufacturing, marketing or selling products, utilising the
confidential information subject matter of the suit.
CS(COMM) No.619/2016 Page 4 of 21
4. On enquiry, it is informed that pleadings qua all the defendants
have been completed save defendant no.7 Syed Mohammad Ismail who
has been proceeded against ex parte.
5. The applications of the defendants no.1 to 4 being IA
No.10808/2016 under Order VII Rule 10 of the Code of Civil Procedure,
1908 (CPC) and of the defendants no.5,6,8&10, being IA No.8693/2016
under Order VII Rules 10 and 11 of the CPC are for consideration.
6. The arguments on the said applications were commenced on 13 th
February, 2018, when after hearing the counsels it was inter alia ordered
as under:-
"5. The applications of defendants no.1 to 4
and defendants no.5, 6, 8 & 10 under Order VII
Rules 10 and 11 of the CPC are pending
consideration.
6. The senior counsel for the defendants no.1 to 4
has at the outset contended that the plaintiff obtained
ex parte ad interim order dated 24th May, 2016 from
this Court by misrepresenting to this Court that the
plaintiff has its office at 14/5, Main Mathura Road,
Main Mathura Road, New Delhi-110008 as
mentioned in the memo of parties with the plaint. It
is contended that the Pin Code No.110008 pertains
to Patel Nagar and property No.14/5, Main Mathura
Road falls in Faridabad and does not fall in New
Delhi as was wrongly represented to this Court.
7. The senior counsel for the plaintiff on enquiry
confirms that the property No.14/5, Main Mathura
Road is situated in Faridabad and states that the
office of the plaintiff earlier was in property No.14/5,
CS(COMM) No.619/2016 Page 5 of 21
Main Mathura Road, Faridabad but had been shifted
to Jasola, New Delhi and the plaintiff mistakenly in
the plaint pleaded the office to be at 14/5 Main
Mathura Road, New Delhi.
8. The senior counsel for the plaintiff on instructions
also agrees that the Pin Code No.110008 is also
wrong.
9. On enquiry as to since when the plaintiff has its
office at Jasola and on further enquiry whether any
Director / officer of the plaintiff is present in Court,
Mr. Avinash Kumar present in Court states that he is
the Legal Counsel for the plaintiff and on further
enquiry states that the office of the plaintiff at Jasola
is not owned by the plaintiff but is in a Business
Centre and was taken in September, 2016.
10. The plaint in the present suit was filed in or
about May, 2016.
11. While this order is being dictated, Mr. Avinash
Kumar, Legal Counsel states that he was mistaken in
this respect also and now states that in September,
2016, the office of the plaintiff was at Noida.
However, on further enquiry, since when was it at
Noida, he states that he was not even in the
employment of the plaintiff at that time.
12. It is quite obvious that the plaintiff and its
Directors including Mr. Anuraag Kothari who has
instituted this suit and has filed the affidavit
accompanying the plaint have not been making a
clean breast of the facts before this Court.
CS(COMM) No.619/2016 Page 6 of 21
13. Let Mr. Anuraag Kothari, Senior Commercial
Counsel of the plaintiff appear before this Court on
21st February, 2018."
7. The senior counsels for the plaintiffs state that Mr. Anurag Kothari,
Senior Commercial Counsel of the plaintiff is present in Court and has
also filed in the Court his affidavit verified on 20 th February, 2018 along
with documents. The said affidavit has not come on record. A copy of the
same is handed over in the Court.
8. Before proceeding further, the facts on which the plaintiff has
approached this Court may be noticed. It is the case of the plaintiff in the
plaint i) that the plaintiff is a part of Huntsman Corporation Group of
Companies, a global manufacturer and marketeer of differentiated
chemicals in more than thirty countries; ii) that the defendant no.2 is a
supplier of dye intermediaries to the plaintiff which the plaintiff uses as
raw-material for the manufacture of its products; iii) that the defendants
no.3&4 are the Managing Director and Director respectively of the
defendant no.2; iv) that the defendants no.5 to 15 are former employees of
the plaintiff; v) that the defendants no.5 to 15, during their association
with the plaintiff, have been privy to the confidential and proprietary
information of the plaintiff; vi) that the defendant no.2 as a supplier of key
raw-materials to the plaintiff was also privy to confidential and
proprietary information of the plaintiff; vii) that a Confidential Disclosure
Agreement dated 8th September, 2015 was entered into between the
plaintiff and the defendant no.2 whereunder the defendant no.2 agreed not
to disclose the confidential information of the plaintiff to any third party;
viii) that the defendant no.1 has been got incorporated by the defendants
CS(COMM) No.619/2016 Page 7 of 21
no.2 to 4; ix) that all the defendants are in collusion and conspiracy with
each other; x) that the defendant no.1 is engaged in the business of
manufacturing dyes and other chemicals as being manufactured by the
plaintiff, but having no knowhow for manufacture of the same, entered
into a conspiracy with the defendants no.5 to 15; xi) that the defendants
are manufacturing dyes and chemicals competing with the dyes and
chemicals of the plaintiff; and, xii) that the defendants no.5 to 15 parted
with the confidential and proprietary information of the plaintiff to the
defendants no.1 to 4 while being in the employment of the plaintiff.
9. The senior counsel for the plaintiff, qua the controversy on account
of which hearing was adjourned on 13th February, 2018, states (i) that the
office of one of the divisions of the plaintiff, till the year 2009, was at
property no.14/5, Mathura Road and which property fell within the
jurisdiction of Faridabad; (ii) that the plaintiff however, on its website
also, till now was showing the said property as in New Delhi and inspite
of ceasing to exist in the property since the year 2009 and steps for
rectification of which have already been undertaken (another senior
counsel for the plaintiff at this stage states that the address is not on the
website but on Google map, as also stated in para 6 of the affidavit copy
of which has been handed over today); (iii) that from the year 2011 till
31st August, 2016, the office of the plaintiff was at Jasola in New Delhi
and the plaintiff along with the affidavit copy of which has been handed
over in the Court today has filed copy of the lease deed of the said
premises and of extension of lease of the said premises; and, (iv) that it is
only in August, 2016 that the plaintiff has shifted its office to Noida.
CS(COMM) No.619/2016 Page 8 of 21
10. It is the contention of the senior counsel for the defendants no.1 to
4:
(i) that the plaintiff itself, at page 162 of Part-III File, has filed the
Agreement entered into between the plaintiff and the defendant
no.2 and which Agreement shows the plaintiff to be having its
office in Mumbai, Maharashtra and the defendants no.2 to 4 also to
be having their office at Mumbai, Maharashtra and which
Agreement (Confidential Disclosure Agreement dated 8 th
September, 2015 supra) contains the following clause:-
"F. Governing Law. This agreement and all
matters arising out of or relating to this agreement
shall be governed by and interpreted exclusively in
accordance with the laws of the Jurisdiction without
regard to the conflicts of law principles thereof. The
parties irrevocably submit to the exclusive
jurisdiction of the courts located in Mumbai in
respect to this agreement and all matters arising out
of or relating to this agreement, except that such
Jurisdiction shall be nonexclusive for injunctive
relief and enforcement of judgments.";
(ii) that the plaintiff, during the hearing on 24th May, 2016,
expressly stated and as recorded in para 9 of the order of that date,
that the plaintiff, in this suit, is enforcing the confidentiality clause
in the Agreement aforesaid;
(iii) that the defendants no.1 to 4 are all at Mumbai, Maharashtra
and have no offices at Delhi and the plaintiff also in the plaint has
furnished the Mumbai address only of the defendants no.1 to 4;
CS(COMM) No.619/2016 Page 9 of 21
(iv) that the plaintiff, in jurisdictional paragraph of the plaint, being
para 89 has pleaded as under:-
"89. Thus cause of action arose within the
territorial jurisdiction of this Hon‟ble Court and this
Hon‟ble Court has the jurisdiction to try, entertain
and decide the present matter. It is submitted that the
Plaintiff has its office and business operations within
the territorial jurisdiction of this Hon‟ble Court from
where part of the Confidential and Proprietary
Information in respect of which the Plaintiff has
intellectual property rights including copyright has
been illegally obtained by the Defendants. Further,
the Defendant Nos. 8 is based in the territorial
jurisdiction of this Hon‟ble Court. It is further stated
that Since 2014 till the end of Defendant No.5‟s
employment with the Plaintiff, the Defendant No.5
was based in the Delhi office of the Plaintiff. The
conspiracy was hatched by the Defendants and
concrete plan was made during their meeting on
December 15, 2015 which was held within the
territorial jurisdiction of this Hon‟ble Court. The
Defendant No.8 executed the conspiracy by
facilitating various tests from his office based within
the jurisdiction of this Hon‟ble Court. The Plaintiff
has disclosed Confidential and Proprietary
Information to the Defendant Nos.2,3 and 4 within
the territorial jurisdiction of this Hon‟ble Court. The
conspiracy hatched by the Defendant Nos. 5 to 15
whereby Confidential and Proprietary Information
pertained to the Plaintiff being transferred to the
Defendant Nos. 2 to 4 are all actions which do not
have redressal within the contours of the
employment agreements. Since the conspiracy with
CS(COMM) No.619/2016 Page 10 of 21
strangers and outsiders is not capable of
enforcement only through the terms of the
employment agreements which has otherwise been
terminated. The Plaintiff also has several major
dealers who are based in the territorial jurisdiction
of this Hon‟ble Court, and who were approached by
the Defendants while trying to solicit them into
breaching their exclusivity with the Plaintiff. The
action of Defendant No.2 is further in breach of the
confidentiality agreement in force since August 2015
where under data exclusivity of the Plaintiff has been
breached in violation of the express terms and
conditions of the said agreement. It is further stated
that the several meetings of the Defendants were
also conducted within the territorial jurisdiction of
this Hon‟ble Court. Therefore, the cause of action
arose within the territorial jurisdiction of this
Hon‟ble Court.";
(v) that Mr. Anurag Kothari, Senior Commercial Counsel of the
plaintiff has in para 10 of the affidavit, copy of which has been
handed over today, referred to the meeting on 15th December, 2015
held at Taj Vivanta, Delhi within the territorial jurisdiction of this
Court; however the document filed by defendants of the said
meeting shows the meeting to have taken place at Taj Vivanta,
Surajkund, Faridabad; the plaintiff is thus continuing to file
affidavits suppressing the truth and making false deposition.
Attention is also invited to the Statement of Truth affirmed by Mr.
Anurag Kothari accompanying the plaint in terms of Order VI Rule
15A of the CPC as applicable to commercial suits.
CS(COMM) No.619/2016 Page 11 of 21
11. The counsel for the defendants no.5,6,8 to 13 and 15, in support of
his application (though under Order VII Rules 10 & 11 of CPC but on the
aspect of territorial jurisdiction only) has drawn attention to the
Agreement at page 82 of the Part-III File, filed by the plaintiff itself with
one of the said defendants and states that the Agreements entered into by
the plaintiff with all the defendants no.5 to 15 are identical, and which
Agreements also contain the following clause:-
"15. Jurisdiction
This contract of employment shall be governed by
the laws of India and the same shall be deemed to
have been made in Mumbai and any dispute arising
from this contract shall be subject to the exclusive
jurisdiction of the competent court in Mumbai in all
matters arising out of this agreement."
and has argued that the plaintiff, as per its own Agreement with
each of the defendants no.5 to 15, having agreed to the exclusive
jurisdiction of the Court at Mumbai cannot sue the said defendants within
the territorial jurisdiction of this Court.
12. Per contra, the senior counsel for the plaintiff has (i) argued that the
principle as laid down by the Division Bench of this Court in Teva
Pharmaceutical Industries Ltd. Vs. Natco Pharma Limited (2014) 210
DLT 591 would apply. (however on enquiry whether not the said
judgment is with respect to quia timet action, the senior counsel for the
plaintiff confirms but has been unable to show paragraph of the plaint
where a foundation for the suit which has been filed being a quia timet
action, has been laid); (ii) invited attention to Section 62 of the Copyright
CS(COMM) No.619/2016 Page 12 of 21
Act, 1957 and to paras 12 and 13 of Exphar SA Vs. Eupharma
Laboratories Ltd. (2004) 3 SCC 688 (however on enquiry, as to where
Section 62 is pleaded in the jurisdictional paragraph set out hereinabove,
the senior counsel for the plaintiff contends that the plaintiff has in para
89 reproduced hereinabove pleaded confidential and proprietary
information in which the plaintiff has intellectual property rights including
copyright); (iii) invited attention to the documents filed by the plaintiff at
pages 215 and 232 of Part-III file where the defendants no.2 to 5 & 8 in
their e-mails have referred to the meeting of 15th December, 2015 at Taj
Vivanta, Delhi; (iv) contended that the defendant no.5 in its written
statement has denied the very meeting and thus today cannot turn around
and say that the meeting was not at Taj Vivanta, Delhi but at Taj Vivanta,
Surajkund, Faridabad; (v) argued that the defendant no.5 was employed
with the plaintiff at Delhi; (vi) contended that the claim by way of present
suit is not covered by the Agreements between the plaintiff and the
defendants no.5 to 15 containing the jurisdiction clause as aforesaid; (vii)
argued that there is no Agreement of the plaintiff with the defendant no.1
for limiting the jurisdiction to any one Court and the cause of action
accrued to the plaintiff against the defendant no.1 is same as the cause of
action against the defendants no.2 to 15 and the cause of action cannot be
split up; (viii) argued that the jurisdiction clause in the Confidential
Disclosure Agreement dated 8th September, 2015 between the plaintiff and
the defendants no.2 reproduced hereinabove is non-exclusive qua
injunctive relief as has been claimed by the plaintiff in this case; and, (ix)
referred to para 12 of Mayar (H.K.) Ltd. Vs. Owners & Parties, Vessel
M.V. Fortune Express (2006) 3 SCC 100 laying down that an application
CS(COMM) No.619/2016 Page 13 of 21
under Order VII Rule 11 of the CPC is to be decided on the averments in
the plaint and so long as the plaint discloses some cause of action which
requires determination by the Court, the mere fact that in the opinion of
the Court the plaintiff may not succeed, cannot be a ground for rejection
of the plaint and has contended that the averments in the plaint in the
present case disclose this Court to be having territorial jurisdiction and the
plaint cannot be returned/rejected and the question such as whether the
meeting took place at Taj Vivanta, New Delhi or at Taj Vivanta,
Surajkund, Faridabad have to be determined at trial.
13. The senior counsel for the defendants no.1 to 4, in rejoinder has
contended (i) that though the plaintiff has not invoked Section 62 of the
Copyright Act but even if were to invoke the same, the principle laid
down in ABC Laminart (P) Ltd. Vs. A.P. Agencies, Salem (1989) 2 SCC
163 would still continue to apply to jurisdiction under Section 62 of the
Copyright Act as well; (ii) that the plaintiff in para '1' of the plaint has
shown its office at Delhi when in the Confidential Disclosure Agreement
dated 8th September, 2015 with the defendant no.2, the office of the
plaintiff has been shown to be at Mumbai, Maharashtra; and, (iii) that the
plaintiff obtained order of ex parte injunction and issuance of commission
by representing to the Court that the plaintiff is enforcing the Agreement
with the defendants no.2 to 4 and cannot now turn around and say that the
jurisdiction clause in the said Agreement does not apply owing to the
subject matter of the suit being beyond the scope of the said Agreement.
14. The counsel for the defendant no. 5,6,8 to 13 and 15, in rejoinder
states that the defendant no.5 along with his written statement has filed the
CS(COMM) No.619/2016 Page 14 of 21
bill of Taj Vivanta of 15th December, 2015 of the meeting pleaded by the
plaintiff and thus the denial in the written statement of the said defendant
referred to by the senior counsel for the plaintiff has to be seen in the said
context.
15. I have enquired from Mr. Anurag Kothari, Senior Commercial
Counsel of the plaintiff present in Court as to how in May, 2016, when
the plaintiff, since 2009 was not at 14/5, Main Mathura Road, Faridabad,
the address of the plaintiff in the title of the plaint was pleaded so and as
to how in para 1 of the plaint, the plaintiff has pleaded its office to be at
the said address.
16. Mr. Anurag Kothari, except for stating that it was an inadvertent
error, has nothing to say.
17. It cannot be lost sight of, that Mr. Anurag Kothari describing
himself as Senior Commercial Counsel of the plaintiff, should have been
more aware of the sanctity of the Statement of Truth sworn and the
pleadings made before the Court and it is unbelievable that for seven years
after the office has ceased to exist at the premises, not only the address in
the title of the plaint would be given of the said premises but a categorical
statement in the plaint of the office being at the said address would be
made. Interestingly, in para 1 of the Statement of Truth, Mr. Anurag
Kothari has pleaded his office to be at Light Hall B-Wing, Hiranandani
Business Park, Saki Vihar Road, Powai, Mumbai, Maharashtra - 400
0072 and deposed only being at Delhi for the purposes of affirming the
said statement on oath.
CS(COMM) No.619/2016 Page 15 of 21
18. It is quite clear that an attempt was made to portray to the Court,
which on the first date of hearing, owing to listing of large number of
fresh matters is pressed for time, that the plaintiff has its office at Delhi
when in fact the person affirming the statement of truth also is pleading
his office to be in Mumbai. Not a whisper is made in the plaint of the
plaintiff having its office at Mumbai, though the senior counsel for the
plaintiff on enquiry confirms that the registered office of the plaintiff is at
Mumbai.
19. When a question of territorial jurisdiction was likely to arise, as the
counsel for the plaintiff also was aware on the date of admission of the
suit, as is evident from a reading of para 12 of the order dated 13 th
February, 2018 reproduced above, such statements by the plaintiff in the
plaint cannot be said to be innocuous or inadvertent and have to be
necessarily held to be with an intent to not arouse the suspicion of the
Judge reading the file before hearing, that the plaintiff is based out of
Delhi only and is thus entitled to maintain the suit at Delhi, even against
the defendants situated at Mumbai. Once the counsel for the plaintiff was
conscious of the aspect of territorial jurisdiction likely to arise, it was
incumbent upon the plaintiff to make a clean breast of the state of affairs
concerning territorial jurisdiction and inform the Court that though the
plaintiff is also based out of Mumbai as the defendants no.2 to 4 against
whom the relief was directed and though as per the Agreement which was
under enforcement, there was a jurisdiction clause of Mumbai but the
plaintiff was otherwise entitled to invoke the territorial jurisdiction of this
Court. As is evident, not only was the same not done but an attempt to not
allow true facts to come before the Court was made. Merely filing
CS(COMM) No.619/2016 Page 16 of 21
documents before the Court running in several volumes amounts to paying
lip service to the requirement of full disclosure I am therefore of the view
that de hors the applications under Order VII Rule 10 of the CPC, the
plaintiff is liable to be non suited for the reason of having abused the
process of the Court and having obtained interim order by non disclosure
of complete facts.
20. As far as the contention of the senior counsel for the plaintiff, of the
Court at the stage of Order VII Rule 10 of the CPC being required to see
the contents of the plaint only and nothing beyond the plaint is concerned,
when it is found that the case pleaded by the plaintiff in the plaint is
contrary to the documents filed by the plaintiff itself along with the plaint
and which documents have in Liverpool & London S.P. & I. Association
Ltd. Vs. M. V. Sea Success (2004) 9 SCC 512, Vikram Chandhok Vs.
Rashmi Skadegaard (2015) 220 DLT 597 (DB) and Anita Kumari Gupta
Vs. Ved Bhushan 2014 SCC OnLine Del 2895 (DB) been held to be
entitled to be read for the purpose of Order VII Rule 11 of the CPC. It is
thus not open to the plaintiff to contend that even though it has pleaded
contrary to its own documents but the Court should ignore the said
documents and proceed to try the suit and by end of which time, the
objection to territorial jurisdiction would lose its efficacy inasmuch as a
defendant also would not like to have a second round of full litigation
before the Court which actually has jurisdiction.
21. That brings me to the legal aspect. The questions to be considered
are two-fold. Firstly, whether Section 62 of the Copyright Act entitles a
plaintiff to sue thereunder in a Court inspite of having agreed with the
defendants to submit to the jurisdiction of another Court which also has
CS(COMM) No.619/2016 Page 17 of 21
territorial jurisdiction over the subject matter of the suit. The second
question which arises for consideration is the interpretation of the clause
aforesaid in the Agreement between the plaintiff and the defendants no.2
to 4.
22. Though the senior counsel for the plaintiff during the hearing has
also suggested that Indian Performing Rights Society Ltd. Vs. Sanjay
Dalia (2015) 10 SCC 161 and Ultra Home Construction Pvt. Ltd. Vs.
Purushottam Kumar Chaubey (2016) 227 DLT 320 are with respect to
Section 134 of the Trade Marks Act, 1999 and Section 62 of the
Copyright Act, 1957 is different but I am unable to agree. In Blueberry
Books Vs. Google India Pvt. Ltd. (2016) 230 DLT 615 (DB) (SLP(C)
No.22081/2016 preferred whereagainst was dismissed on 16th August,
2016) the law as laid down in Sanjay Dalia supra was applied to Section
62 of the Copyright Act.
23. Section 62 of the Copyright Act merely extends the jurisdiction in
which suits of the nature described in Section 62 may be filed in addition
to that under Section 20 of the CPC, as also held in Sanjay Dalia and
Exphar supra as also in Wipro Ltd. Vs. Oushadha Chandrika Ayurvedic
India (P) Ltd. AIR 2008 Mad 165 (DB) entitling the plaintiff to, in
addition to invoking jurisdiction of the Court under Section 20, also
invoke the jurisdiction of another Court under Section 62 and which may
not be the Court which the plaintiff could approach under Section 20 of
the CPC. Once that is so, I am unable to fathom any reasons and none
have been suggested, as to why what has been held in relation to Section
20 of the CPC i.e. that the same does not come in the way of the parties
agreeing to limit the territorial jurisdiction to one of the several Courts
CS(COMM) No.619/2016 Page 18 of 21
which may have jurisdiction to entertain the suit, would not apply to
Section 62 as well. I find, this Court in Saregama India Limited Vs. Eros
Digital FZ LLC 2017 SCC OnLine Del 10996 to have applied the clause
in the agreement limiting territorial jurisdiction while returning plaint
invoking jurisdiction under Section 134 of Trade Marks Act and Section
62 of Copyright Act. It is not the plea that Mumbai Courts have no
jurisdiction.
24. Coming to the interpretation to the clause, as would be noticed from
enumeration hereinabove of the claims made by the plaintiff in the suit,
the plaintiff, in this suit, besides claiming the injunctive relief, has also
claimed the relief of recovery of damages. On same being put to the senior
counsel for the plaintiff, the senior counsel states that the plaintiff is
willing to give up the claim for damages and to confine the reliefs claimed
in this suit to injunctive reliefs only.
25. I am afraid the same cannot be permitted at this stage. The plaintiff,
not only suppressed the jurisdiction clause in the Agreement with the
defendants no.2 to 4 and did not draw attention of this Court on 24 th May,
2016 thereto when ex parte injunction was obtained but has continued to
pursue the suit for the said reliefs even after the defendants have taken
objection to the territorial jurisdiction and even after the last order on 13th
February, 2018. The plaintiff, when caught on the wrong foot, if
permitted to change its stand, the same would amount to giving premium
on dishonesty and will send a message that the Court can be approached
and the defendant harassed, by misrepresenting facts and the stand can be
changed if caught and would sound the death knell of litigation.
CS(COMM) No.619/2016 Page 19 of 21
26. The jurisdiction of the Court has to be determined on the basis of
the plaint as it stands today and the plaint as stands today is admittedly for
the reliefs beyond injunctive relief.
27. Though on interpretation of the Clause F titled 'Governing Law'
reproduced above, in the Confidential Disclosure Agreement between
plaintiff and defendant No.2 also I am unable to interpret the same as
enabling institution of a suit for injunction in the nature of enforcement of
the Confidential Disclosure Agreement, as this suit is, to lie in a Court
other than at Mumbai and permitting institution of a suit for injunction
outside the Confidential Disclosure Agreement only to be instituted in a
court other than at Mumbai, but even if it were to be held that the said
clause does indeed permit so, even then, the plaintiff having in this suit
also joined the cause of action against defendants No.5 to 15 with whom
also plaintiff had agreed to exclusive jurisdiction of Courts at Mumbai, the
plaintiff cannot be permitted to sue all the defendants joined in this suit, in
this Court and applying the principle of Forum Conveniens, the
appropriate Court to entertain the suit would be the Court at Mumbai.
Cause of action as pleaded cannot be permitted to be split up. Reference
may be made to State Bank of India Vs. Gracure Pharmaceuticals
Limited (2014) 3 SCC 595, Raptakos Brett and Company Limited Vs.
Ganesh Property (2017) 10 SCC 643 and Staples INC Vs. Staples Paper
Converters Pvt. Ltd. 2014 SCC OnLine Del 2092. Similarly, the plaintiff
having sued defendant No.1 along with other defendants, it is not open to
plaintiff to contend that because of joinder of defendant No.1, the
agreement entered into by plaintiff with defendants No.2 to 15, agreeing
to exclusive jurisdiction of Mumbai Courts be given a go-bye.
CS(COMM) No.619/2016 Page 20 of 21
28. Thus, both the legal issues which arose for consideration are
decided against the plaintiff. Resultantly the suit has to be dismissed/the
plaint returned to the plaintiff for filing in the Court of appropriate
territorial jurisdiction.
29. Needless to state that with the dismissal of the suit, the interim
order in the suit stands vacated.
30. For the reasons aforesaid, the plaintiff is also burdened with costs
of Rs.5,00,000/- payable in the name of defendant no.1 with liberty to the
defendants to split up the same amongst themselves as they may deem fit.
Dasti.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 21, 2018 'pp' CS(COMM) No.619/2016 Page 21 of 21