Case: CTP Environment S.A.S Vs. Sentro Technologies Limited and Ors

G.S. Patel, J. 1. This order will dispose of these two Notices of Motion, both filed by the Defendants. The suit is an action in patent infringement. 2. Notice of Motion No. 912 of 2015 purports to be under Order VII Rule 10 and Order VII Rule 11, read with Section 51 of the Code of Civil Procedure, 1908 (CPC). Notice of Motion No. 913 of 2015 is more substantial. It seeks recall of two orders dated 10th October 2014 and 8th January 2015, because, according to the Defendants, these orders were ex parte orders obtained without proper notice to the Defendants. 3. I have heard Mr. Khata for the Defendants and Mr. Tulzapurkar for the Plaintiff at quite considerable length. With their assistance, I have considered the material on record. RE: NOTICE OF MOTION NO. 912 OF 2015 4. In my view, this Notice of Motion is completely misconceived and not maintainable. The reasons are many. To begin with, the cast of the prayer is wrong. This being a Chartered High Court, in view of the provisions of Order 49 Rule 3, there is no question of rejection of a plaint under Order 7 Rule 10. That Rule does not apply to the Chartered High Courts. In any case, that Rule is for return of the plaint and not for rejection of the plaint, which is a completely different aspect. 5. As regards the relief under Order 7, Rule 11, this too cannot be maintained. Order 49 also provides that clauses (b) and (c) of Order 7 Rule 11 have no application to a Chartered High Court. Mr. Khata places his case emphatically under Order VII Rule 11(d), saying that it is barred by any law. By this, he means that this Court does not have the jurisdiction to entertain the Suit. Incidentally, this is another reason why the application under Order 7 Rule 10 can never lie, even assuming that that Rule applied to this Court. If the Defendants case is that this Court has no jurisdiction because the Defendants are not in India, then no Court in India has jurisdiction and there is no question of returning the plaint for presentation to the proper Court; according to the Defendants themselves, there is simply no other Court in India to which the Plaintiff could go. 6. In any case, the application under Order 7 Rule 11 must proceed on a demurrer, i.e., on taking the plaint as it stands. This is settled law. It cannot be assessed on any convoluted, complicated or complex process of reasoning. On the plaint, as it stands, there is a clear case made out showing that the Court has jurisdiction. The necessary averments are to be found in paragraph 45 of the plaint. Here, the Plaintiff avers that the 1st Defendant has a place of business or an office in Mumbai, and the 2nd Defendants place of business is also in Mumbai. It is also alleged that the patent infringement in question took place in Mumbai and, therefore, the entire cause of action arose within the jurisdiction of this Court. 7. The entirety of the Defendants case is based on one entirely incorrect and flawed premise, viz., that it is only the situs of the Defendants that gives a Court jurisdiction. Even a plain reading of Section 20 of the CPC indicates otherwise. Here, the case of the Plaintiff is, in addition to the Defendants situs, that the cause of action, i.e., the patent infringement, took place in Mumbai. If this be so, then this is an additional reason to reject the Defendants Notice of Motion. This is a matter not to be gauged on the basis of Replies and Rejoinders but on the demurrer and on a reading of the plaint as it stands. In short, what Order 7, Rule 11 of the CPC requires is this: that the defendant must be able to say, take the plaint as it stands, and when you do, you will find that there is no cause of action against the defendant and that this Court in no case has jurisdiction. It is not possible to hold that the Defendants have made out any such case.

Decision:
0[ds]4. In my view, this Notice of Motion is completely misconceived and not maintainable. The reasons are many. To begin with, the cast of the prayer is wrong. This being a Chartered High Court, in view of the provisions of Order 49 Rule 3, there is no question of rejection of a plaint under Order 7 Rule 10. That Rule does not apply to the Chartered High Courts. In any case, that Rule is for return of the plaint and not for rejection of the plaint, which is a completely different aspect.5. As regards the relief under Order 7, Rule 11, this too cannot be maintained. Order 49 also provides that clauses (b) and (c) of Order 7 Rule 11 have no application to a Chartered High Court.Incidentally, this is another reason why the application under Order 7 Rule 10 can never lie, even assuming that that Rule applied to this Court. If the Defendants case is that this Court has no jurisdiction because the Defendants are not in India, then no Court in India has jurisdiction and there is no question of returning the plaint for presentation to the proper Court; according to the Defendants themselves, there is simply no other Court in India to which the Plaintiff could go.6. In any case, the application under Order 7 Rule 11 must proceed on a demurrer, i.e., on taking the plaint as it stands. This is settled law. It cannot be assessed on any convoluted, complicated or complex process of reasoning. On the plaint, as it stands, there is a clear case made out showing that the Court has jurisdiction. The necessary averments are to be found in paragraph 45 of the plaint. Here, the Plaintiff avers that the 1st Defendant has a place of business or an office in Mumbai, and the 2nd Defendants place of business is also in Mumbai. It is also alleged that the patent infringement in question took place in Mumbai and, therefore, the entire cause of action arose within the jurisdiction of this Court.7. The entirety of the Defendants case is based on one entirely incorrect and flawed premise, viz., that it is only the situs of the Defendants that gives a Court jurisdiction. Even a plain reading of Section 20 of the CPC indicates otherwise. Here, the case of the Plaintiff is, in addition to the Defendants situs, that the cause of action, i.e., the patent infringement, took place in Mumbai. If this be so, then this is an additional reason to reject the Defendants Notice of Motion. This is a matter not to be gauged on the basis of Replies and Rejoinders but on the demurrer and on a reading of the plaint as it stands. In short, what Order 7, Rule 11 of the CPC requires is this: that the defendant must be able to say, take the plaint as it stands, and when you do, you will find that there is no cause of action against the defendant and that this Court in no case has jurisdiction. It is not possible to hold that the Defendants have made out any such case.I am given to understand that this means he is some sort of magician or performer given to demonstrating feats of mind-reading and other such displays of apparently extraordinary mental prowess. That does not seem to have helped the Defendants in the least; for the record shows that there were at least two minds that went totally unread.16. So: what we have, therefore, is that the Arcadia address was shown at the Sentro Tech website; at that physical address, only MIPL was to be found; and Suchards mentalist sibling has an association with MIPL.17. A question, therefore, directly arose in these very proceedings about the identity of the registrant of the domain name sentro-tech.com. There is material before me to indicate that the Defendants attempted to conceal or hide the details of the true registrant of this domain name; that matters little, since it is a very difficult business to obscure digital footprints, even with a mentalist in the family. The Plaintiff filed a subsequent Notice of Motion No. 1440 of 2016. I passed an order on that Motion on 17th June 2016. Prayer (c) of that Notice of Motion demanded a disclosure by the domain name registrar, domainsbyproxy.com, of the registrant of this domain name. That domain name registrar filed an affidavit. It is part of the record. It shows in no uncertain terms that the registrant of that domain is none other than Suchard himself.18. Therefore, to return to the summation in its next iteration: the Sentro Tech website showed the Arcadia address; the Sentro Tech website is now known to be registered to Suchard; at that physical address, only MIPL was found; and Suchards sibling is associated with MIPL.19. From the documents annexed to the Affidavit in Reply and the Affidavit in Rejoinder, it is not possible to tell whether the website at www.sentro-tech.com is limited to the 2nd Defendant or to the US firm (Sentro Technologies LLC) or both, or whether it includes the 1st Defendant Company. It certainly mentions an office in India. It also mentions an email address at which Sentro Technologies may be contacted. The Plaintiff served the Defendants at that email address as well.20. Mr. Tulzapurkar also points to another page from a business profile.2 It refers to Sentro Technologies Limited, obviously the 1st Defendant. It carries the same logo that appears on the webpages to which I referred earlier, and it refers generically to Sentro Technologies. What is interesting is that it lists the 1st Defendants website as being at www.sentro-tech.com, the very URL of which Suchard is personally the registrant and which Suchard claims is the URL of the US firm. What we now have, therefore, in addition to the previous factual array is that both the 1st Defendant Company and the US firm, at a minimum, share the same URL and website, under a domain name registered to Suchard, the 2nd Defendant.21. It is impossible to accept Mr. Khatas argument that since Suchard is a Director of the 1st Defendant, and the 1st Defendant has no office in India, therefore, the 2nd Defendant must also be deemed never to have been in India. This is more or less the substance of what is stated in paragraph F(ii) of the Affidavit in Support of the present Notice of Motion.22. Paragraph 6 is deliberately misleading; and to say that the 1st Defendant does not have a website is, as we have seen, entirely false. There is, too, the wilful suppression of the domain name registration information. Paragraph 13 is the purest chicanery, with Suchard claiming that he must be served in his capacity as a director of the 1st Defendant; and that if the 1st Defendant has no office here then he, as its director, does not either - notwithstanding that he might himself actually be doing business in India. These statements are of the stripe that are sufficient to dismiss the Motion with nothing further.323. Further, the extracted paragraphs are directly contrary to paragraph 12 of the Rejoinder,4 where the 1st Defendant admits that one Mr. Shay, a Project Manager, received a notice from the Plaintiff in June 2014. The 2nd Defendant alleges that Shay resigned on 1st October 2014. But this must necessarily mean that the 1st Defendant company did have an office in Mumbai in June 2014; and the statement in paragraph 6(i) of the Rejoinder is, therefore, clearly false.24. There is also the question of whether the Defendants have any credibility at all. I will leave aside all questions about the patent itself. There is, however, one statement in the Affidavit in Rejoinder that is a telling, if inadvertent, admission, and this is in paragraph 4, where the 2nd Defendant admits that apart from him there are two other companies that provide online cleaning services in India. This means that the 2nd Defendant also does business in India. That is enough for the purposes of jurisdiction.25. In paragraph G(iii) of the Affidavit in support, page 20, the 2nd Defendant claims that he has nothing whatever to do with MIPL in Mumbai. This statement is demonstrably incorrect. The Plaintiff applied for the appointment of a Court Receiver to make a site inspection of the refinery of Essar Oil at Jamnagar. I allowed that application by an order dated 1st October 2015. The Court Receiver was also directed to visit, importantly, a guest house near that refinery. When he did so, the Court Receivers representative found that not only the 2nd Defendant but others who are associated with Sentro Technologies LLC in California had visited that very guest house. A copy of the address of the visitors log was annexed to that report. This showed the name of the 2nd Defendant, one Samuel Marshall, and two others. All of them were shown as having an Indian address as Sentro/MIPL Mumbai. All were said to have arrived at Jamnagar from Mumbai on official work.26. Mr. Khatas argument also overlooks the provisions of Order 29 Rule 2 of the CPC. Service on a corporation, and the 1st Defendant is one, may be effected by service on the secretary/director or other principal officer or by leaving it or sending it by post addressed to the corporation at its registered office, or if there is no registered office, then at the place where the corporation carries on business. This is unambiguous. On its own showing, the 1st Defendant had an address in Mumbai. The 2nd Defendant certainly did. He was served in Mumbai.28. Thus, viewed from any perspective, the 2nd Defendant, who certainly has business in India and a place of business in Mumbai, is deemed to have been served. On account of the substituted service, the 1st Defendant is duly served as well.29. It is impossible to hold that the orders of 10th October 2014 or 8th January 2015 were ex parte orders obtained without notice. I believe Mr. Tulzapurkar is also correct in pointing out that the Defendants waited for six months between January and June 2015 to move this Notice of Motion because they were, during that time, trying to take whatever steps they could to obscure the registration information of the Sentro Technologies website.