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TMI Blog2014 (1) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... arate legal entity from its shareholders and thus can be sued in its own name. However, in order to avoid a mala-fide exercise and if an act of the company is prima facie meant to circumvent the orders passed by the Courts, this Court will certainly pierce the Corporate veil and find out the true position. Despite an apology being tendered before this Court on 26th November, 2007 in Contempt Petition 35/2005, an independent company i.e. defendant No.1 had already been incorporated on 28th March, 2006 with the wife of defendant No.2 being its majority shareholder. On piercing the Corporate veil, I am of the considered opinion that the defendant No.1 company has been floated by defendant No.2 to circumvent the orders passed by this Court. Hence, the interim injunction granted vide order dated 28th July, 2010 is made absolute till the disposal of the suit - Decided in favour of Appellant. - IA Nos. 19108/2012, 9821/2010 & 10333/2010 in CS(OS) 1514/2010 - - - Dated:- 6-1-2014 - MS. MUKTA GUPTA, J. For the Appellant : Mr. Muneesh Malhotra, Mr. Vikram V. Minhaj, Advs. For the Respondent : Mr. Jayant K. Mehta, Mr. Anuj Kapoor, Advs. JUDGEMENT MS. MUKTA GUPTA, J. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement project. This project was awarded to the plaintiff company being the lowest bidder. The plaintiff company became the first and the only company to set up an e-procurement infrastructure for any State Government in India www.eprocurement.gov.in in May 2002. The e-Procurement platform set up by the plaintiff company for the Government has already processed transactions more than Rs. 36,000 crores within the first two years of its implementation, making it the largest e-Procurement platform in the world and one of the largest portal based e-Commerce projects in the world. It is stated that the plaintiff is the owner of intellectual property rights in all its computer software including the copyright in the Electronic Tender Management Software apart from being protected under Common Law and Trade Secrecy Laws. The relevant computer software developed by the plaintiff is known in the market as Electronic Tender Management System. The plaintiff is also the owner and proprietor of all the brochures, technical material and manual concerning the abovementioned software. All these documents are literary and artistic work under the Copyright Act. The same have been designed and created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Module and/or Electronic Procurement Model and the adaptation thereof in the form of internet based tendering system and/or internet based procurement system and related works to facilitate online electronic trading and/or procurement with its security requirements for use by Government Organizations etc. The Tendercity further undertook that it shall not reproduce the work in any form including the storing of it in any media by electronic means and/or to make any adaptation of the work and to do any act of reproduction, issuance of copies of the work to the public, to communicate the work to the public in relation to the work or adaptation thereof or to sell or to give on commercial rent for sale. 3. After entering into the agreement with the plaintiff company, the Applitech Tendercity.com with the help of the plaintiff company participated in the tenders invited by the Department of Public Relations, Government of Madhya Pradesh and for this the plaintiff provided all the technical know-how, training, literature to the defendant No.2 while working as Director of the Tendercity. Under the agreement dated 20th January, 2003 the defendant No.2 on behalf of the company was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing filed by the plaintiff company, the defendant No.2 appeared before this Court on 26th November, 2007 and tendered his unqualified apology for his past conduct in writing to the customers of the plaintiff and stated before this Court that he was no longer in the business of e-tendering as he was working with M/s Vardhaman Synthetics and Bulk Organics Private Limited. After tendering unconditional apology before this Court the defendant No.2 innovated and opened a new company in the name of his wife wherein his wife is the Director as well as majority shareholder i.e. 88% of the said company. The father-in-law of the defendant No.2 is also one of the Director and shareholder. The defendant No.2 is working as COO of the defendant No.1 company. Thus, the defendant No.2 started the same work though in the garb of his wife being the Director in the name of E-Procurement Technologies Ltd. . This company was formed on 27th March, 2006 and at the relevant time i.e. on 26th November, 2007 when the defendant No.2 made a statement before this Court that he was working with M/s Vardhaman Synthetics and Bulk Organics Private Limited at Ahmedabad, he had already opened a company wherein his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narrated above and has stated that in order to circumvent the orders of this Court the defendant No.2 has floated another company in the name of his wife wherein his wife and father-in-law are the majority shareholders and defendant No.2 is acting as the COO. There is a decree already injuncting the defendant No.2 and Tendercity from using the plaintiff‟s software or violating its copyright and thus at this stage the defendant No.1 or defendant No.2 cannot claim that the plaintiff has failed to show that its copyright has been violated in the present plaint. Learned counsel for the plaintiff has taken me through the various orders passed in the suit being CS(OS) 1675/2005; Arbitration Petition 62/2005 and CCP 35/2005. He has also shown the certificate of incorporation of the defendant No.1 company wherein 88% share holding is of the wife of the defendant No.2. 6. It is well settled that while deciding an application under Order VII Rule 11 CPC the averments made in the plaint and the documents filed therewith are only required to be looked into. As per the plaint the plaintiff is a copyright holder in the software programme. Even though no original document has been filed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA 10333/2010 (by D-1 u/S. 151 CPC) 11. By this application the defendant No.1 seeks an injunction restraining the plaintiff, its directors, officers or any person acting on its behalf from writing or communicating with the customers and clients of the applicant in any manner whatsoever and directions to the plaintiff to issue public apology for threatening and intimidating the clients and customers of the applicant. 12. As noted above, the case of the defendant is that the software of the defendant is wholly different from that of the plaintiff and thus on the basis of the said independent software of the defendant No.1, the defendant No.1 has successfully secured various tenders relating to e-procurement since the year 2006. 13. The case of the plaintiff/non-applicant is that this application is counter-blast to the suit and is not maintainable in the absence of a counter claim filed by the defendants. The plaintiff has, however, admitted that the plaintiff in compliance of the order of this Court in application under Order XXXIX Rule 1 2 CPC duly conveyed to the officers of Government of Andhra Pradesh not to deal with the applicants/ defendants, as the same would amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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