Calcutta High Court
Indian Institute Of Technology vs Mandana D. Farhang & Ors on 14 July, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER
GA No.1125 of 2012
CS No.171 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
INDIAN INSTITUTE OF TECHNOLOGY, KHARAGPUR
Versus
MANDANA D. FARHANG & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 14th July, 2015.
Appearance:
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Sayantan Bose, Adv.
Mr. Kaushik Mondal, Adv.
Ms. Somali Bose, Adv.
...for the defendant no.1 This is an application by the plaintiff for a direction upon the department to issue fresh writ of summons upon the defendants along with copies of the plaint.
The plaintiff instituted the suit on 22nd June, 2009 inter alia praying for a declaration that there has been no concluded non-disclosure agreement between the plaintiff and the defendant no.1 and the said non-disclosure agreement as relied upon by the defendant no.1 is not valid or binding. The plaintiff has stated in the plaint that the first defendant is deemed to carry on business through a company being the defendant no.3 in which the 2 first defendant is a director. It is stated in the plaint that the third defendant company is an alter ego of the first defendant.
The department after scrutinizing the plaint founds certain defects and as such initially the writ of summons could not be lodged in time. Thereafter, the defects were removed. However, by that time, the time to issue writ of summons expired. Under such circumstances, an application being GA No.2159 of 2009 was filed for extension of time to issue writ of summons. The time was extended by the learned Master. In the meantime an interlocutory application was filed being GA No.2172 of 2009 in which the plaintiff has prayed for an interim order of injunction restraining the defendants from utilising the software developed by the petitioner. The said interlocutory application was moved on 21st August, 2009. An interim order was passed on the same date. The plaintiff was directed to serve a copy of the petition and a copy of the supplementary affidavit upon the defendants for which leave was granted by the Court in the said order. In pursuance thereof, the plaintiff through its advocate on record Lex Globaal served upon all the defendants the notice of motion, copy of the petition and copy of the supplementary affidavit along with the signed copy of the minutes of the order dated 21st August, 2009. Since the defendants did not appear, the interim order was extended from time to time. During pendency of the said 3 proceeding, the advocate on record of the plaintiff tried to serve a letter dated 3rd September, 2009 upon the defendants at their address at 6A, Kiran Shankar Roy Road, 2nd floor, Kolkata-700 001, communicating the order dated 28th August, 2009. The said notice was, however, accepted only on behalf of the defendant no.3. The said defendant no.3, however, refused to accept the notice on behalf of the defendant nos.1 and 2. Consequently, the advocate on record of the plaintiff sent the said letter dated 3rd September, 2009 to the defendant nos.1 and 2 by speed post with AD at the aforesaid address but the same was returned by the postal authority with the endorsements "N.C" in respect of defendant no.1 and "No Such Addressee in this address hence n.c" insofar as the defendant no.2 is concerned. The copy of the writ of summons along with copies of the plaint were intended to be served by the Bailiff on the defendants at their office at 6A, Kiran Shankar Roy Road, 2nd floor, Kolkata-700 001. The same, however, could not be served upon the defendants at the said address.
The service through registered post also could not be effected as the undelivered packets were returned with the postal endorsement 'not known'. Since the defendant no.1 had filed an application being GA No.1609 of 2010 in the suit with a prayer that leave may be given to file the petition without a copy of the plaint and to include a copy of the plaint in the instant application, in terms of an order passed in this proceeding a copy 4 of the plaint was sent to Mr. Kaushik Mondal, the Advocate on record of the defendant no.1 on 14th June, 2010 along with a copy of the injunction petition being GA 2172 of 2009. Since then Mr. Kaushik Mondal is representing the defendant no.1. The Advocate on record of the plaintiff intended to serve a copy of the said application upon Mr. Kaushik Mondal. However, Mr. Kaushik Mondal has refused to accept the same on behalf of the defendants. In the meantime, the application being GA 1609 of 2010 filed by the defendant no.1 was taken up for hearing. The learned judge disposed of the said application by making the following observations :
"Though the judgments by the plaintiff in support of its case, that the first defendant is deemed to carry on business through a company in which the first defendant is a director, do not appeal in the present context, yet there is an assertion in paragraph 25 of the plaint that the third defendant company is an alter ego of the first defendant. It is the nature of the claim which has to be assessed in deciding whether the jurisdiction of the Court has been mischievously invoked. In plain words, the second limb of the plaintiff's claim is that the plaintiff has refined and finalised the software which the first defendant, through the instrumentality of the third defendant, is seeking or threatening to exploit and the third defendant has its registered office within jurisdiction. If the claim is read in such light, the basis for the plaintiff indicating the situs of the first defendant carrying on business to be the registered office 5 of the third defendant appears, prima facie, to be justified.
The first defendant's challenge is repelled at this stage with liberty to the first defendant to urge all grounds at the time of trial or later in course of the present suit. As to the effect of the first defendant not having yet been served the writ of summons. Such matter has not been considered at this stage. GA. No. 1609 of 2010 is disposed of without any order as to costs.
GA No.2172 of 2009 is the plaintiff's application for interlocutory relief. The first defendant is represented and seeks extension of time to file her affidavit. The third defendant has also been served. The defendants are permitted four weeks' time to file their affidavits-in- opposition; reply thereto, if any, within a week thereafter. GA No.2172 of 2009 will appear as an 'adjourned motion' in the monthly list of May, 2011."
The aforesaid application for injunction being GA No. 2172 of 2009 filed by the plaintiff was taken up for hearing by His Lordship the Hon'ble Justice Sanjib Banerjee on 4th July, 2011 under the heading 'adjourned motion'. When His Lordship after hearing the submission on behalf of the parties by a judgment and order dated 4th July, 2011 was pleased to dispose of the said application. The relevant portion of the said judgment and order is reproduced below:
"The first defendant says that even on the basis of the petition, and without any affidavit-in-opposition thereto, no case has been made out for grant of the injunction 6 sought in terms of prayer(a). The first defendant claims that since the first defendant appears to have been admitted to be the owner of the copyright in the original CD, the mere making of any addition or alternation thereto would not entitle the plaintiff to claim itself as the owner of the copyright in respect thereof. The first defendant also says that only the cover page of the agreement between the plaintiff and the first defendant has been relied upon in the present proceedings and the entire concluded contract has been suppressed.
The first part of the first defendant's argument appears, prima facie, to be without any merit. It is possible that a programme in a particular form is developed or prepared by a person who will, undoubtedly, be the first owner of the copyright in respect thereof; but upon the programme being developed or enhanced by another, it would be the enhanced programme which would be the subject-matter of the copyright that the latter can claim as the first owner of the copyright therein. Prima facie, the plaintiff has made out a case as the owner of the copyright relating to the enhanced software programme, which the plaintiff made over to the first defendant by way of the second compact disc as is referred to at paragraph 19 of the petition. As to the ground of suppression, the first defendant is left free to apply, upon disclosing adequate material, for vacating this order. Since no affidavit-in-opposition has been filed, the ground of suppression canvassed at the Bar cannot be accepted as a valid defence. GA No.2172 of 2009 is disposed of. In addition to the order in terms of prayer
(b) that has already been passed, there will be an order in terms of prayer(a) of the petition. The first defendant is 7 given express liberty to seek vacating of this order upon previous notice. There will be no order as to costs.
It is made clear that the injunction will operate only to the extent of the enhancement in the original software as has been contributed by the plaintiff, but the injunction will not operate in respect of the original software that is claimed to have been developed by the first defendant." Thereafter, the defendant no.1 filed an application being GA No.3079 of 2011 for vacating the order dated 4th July, 2011. In paragraph 4 of the said application the defendant no.1 had admitted the receipt of the copy of the plaint which was sent to Mr. Kaushik Mondal, her Advocate on record on 14th June, 2010. The plaintiff says that in spite of best efforts, the writ of summons along with a copy of the plaint could not be served upon the defendants for the reasons as indicated above. Accordingly, to put the record straight an application was filed on 20th April, 2012 for issuance of fresh summons upon the defendants.
Mr. Ranjan Bachawat, learned Senior Counsel appearing on behalf of the defendant no.1, submits that the plaintiff cannot proceed with the suit as the time to file writ of summons has expired and there is no cause shown for which this Court should extend the time to lodge the writ of summons. Mr. Bachawat submits that by reason of the delay in lodging the writ of summons a valuable right has accrued in favour of the defendants. There is no prayer for condonation of delay. Mr. Bachawat has referred 8 to a judgment decided on 14th January, 2010 in GA NO. 852 of 2009, CS NO.97 of 2003(NPR FINANCE LIMITED -VERSUS- DEEPAK JHUNJHUNWALA) AND GA No.853 of 2009, CS No.94 of 2003 (RANI LEASINGS & FINANCE LIMITED -VERSUS- DEEPAK JHUNJHUNWALA) and submits that in the said decision it has been categorically stated that if the plaintiff had not taken any step to effect the service of writ of summons at all, then no lenient view should be shown to the plaintiff. I am unable to accept the submission of Mr. Bachawat. The narration of facts as indicated above would show that the plaintiff was diligent in pursuing its remedies. The order of Justice Banerjee as quoted above would show that there is an assertion in paragraph 25 of the plaint that the third defendant is an alter ego of the first defendant. It is the nature of the claim which has to be assessed in deciding whether the jurisdiction of the Court has been mischievously invoked. The first defendant in fact was given liberty to urge all grounds at the time of trial. The said order also says that second limb of the plaintiff's claim is that the plaintiff has refined and finalised the software which the first defendant, through the instrumentality of the third defendant, is seeking or threatening to exploit and the third defendant has its registered office within jurisdiction and if the claim is read in such light, the basis for the plaintiff indicating the situs of the first defendant carrying on business to be the registered 9 office of the third defendant appears, prima facie, to be justified.
In the light of the aforesaid prima facie finding and having regard to the fact that a copy of the plaint has been served upon Mr. Kaushik Mondal, I feel that an opportunity should be given to the plaintiff to lodge the writ of summons. Accordingly, there will be an order in terms of prayers (a) and (b)of the petition. Writ of summons in so far as the defendant nos. 1 and 3 are concerned shall be accepted on their behalf by Mr. Kaushik Mondal. Mr. Bachawat submits that Mr. Mondal has not received any instruction from the defendant no.1 to waive service of the writ of summons upon the said defendant no.1. The purpose of service of writ of summons is to put on notice that a property has been initiated against the defendants and the defendants are required to enter appearance and file written statement otherwise the suit may be heard ex parte. It has no other special purpose. The Advocate on record while executing Vakalatnama undertakes to represent his client in the proceeding. In my view, the Court is not precluded from giving a direction requesting the Advocate on record to accept writ of summons on behalf of his client when the fact remains that he is otherwise representing the defendant no.1 in this proceeding. In addition to the aforesaid, the writ of summons in so far as the defendant no.1 is concerned may be sent at PO Box No.274 Tiburon, California 94920 and insofar as the 10 defendant no.3 is concerned at 250 Bay View Avenue, Belvedre, Californir 94920, United States. The writ of summons shall be lodged within a period of fourteen days from date. In default of complying with this order, the suit shall automatically stand dismissed as against the defendants.
This application is disposed of. However, There shall be no order as to costs.
( SOUMEN SEN, J. ) S. Kumar/SD2 A.R.(CR)