JUDGEMENT
G.S.SISTANI, J. -
(1.)THIS an application filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure, by which plaintiff has prayed that defendants
be restrained from initiating or prosecuting or pursing any proceedings
against the plaintiff outside India with regard to the subject matter of the
suit. Summons were issued in the suit on 25.01.2011. After service
defendant entered appearance on 09.02.2011 when learned senior counsel
for the defendant informed the Court that the defendant had already filed a
suit in the Court at California on 26.01.2011. Leaned senior counsel for
the defendant on instructions had also made a statement that defendant
shall not take any further action in that suit till the next date of hearing
before this court. The statement made by the counsel continues till date.
(2.)WHILE counsel for the plaintiff submits that the application be allowed and the interim order dated 09.02.2011 be confirmed, the present application
is opposed by counsel for the defendant.
The facts of this case as set out in the plaint are that the plaintiff is a company duly incorporated under the Companies Act, 1956. The
defendant company was incorporated under the laws of California, USA.
The plaintiff company is stated to be a ,,knowledge company right from
its inception. It provides solutions for IT enablement to organizations in
the areas of Oil and Gas, Manufacturing, Retail Infrastructure, Power,
Process and new economy industries such as information Technology,
Telecommunications and the service sector. It is further submitted that
the plaintiff has served more than 2000 customers including public sector
companies, Indian Corporates. The parties entered into an ETAP Rep/
Reseller Agreement on 25.04.2009 w.e.f. 01.01.2009 for a period of one
year whereby the plaintiff was to market and sell the defendants products
and services as detailed in annexure B to the agreement in the territories
of Bangladesh, India, Nepal and Srilanka. Under the agreement, the
defendant granted the plaintiff the right to represent, promote the product
of the defendant and the services during the term of the agreement. The
agreement was to be perpetually renewed on an annual basis. It is also
submitted that such agreement between the parties has continued for the
past 12 years. As per the plaintiff, this agreement was not renewed either
in writing or orally after 31.12.2009. It is the case of the plaintiff that
during the continuance of this agreement plaintiff had made huge
investment in terms of money, efforts and human resources to ensure that
the products and services are properly and widely sold in the aforesaid
territories without any complaint or dispute. On account of the promotion
and marketing of the product and services by the plaintiff has resulted in
excellent results and substantial increase in the sales. During the
continuance of this agreement the plaintiff conducted three seminars at
five star hotels in New Delhi, Chennai and Mumbai during the period
September October, 2009. Mr.Farookh Shokooh, President, CEO of the
defendant company was invited to be part of the seminars.
(3.)MR .Goel, learned senior counsel for the plaintiff submits that the plaintiff was shocked to learn that the defendant has incorporated a hundred per
cent subsidiary company in India by the name of ETAP Automation Pvt.
Ltd. on 23.12.2009 with a view to by-pass the plaintiff and with a view to
ride on the efforts and achievements of the plaintiff. Mr.Goel, also
submits that in the year 2008 due to global recession the attitude of the
defendant took a sharp turn and the defendant started hinting that the
commission as agreed between the parties be reduced. This was opposed
by the plaintiff.
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