IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.No.190 of 2007 and M.P.No.1 of 2007 Microsoft Corporation India P. Ltd., No.108, Dr.R.K.Road, Chennai 600 004. ... Appellant/3rd Party Vs. 1.Pace Automation Limited Represented by its President & CEO Having its registered office at 149, Montieth Road, Egmore, Egmore 600 008. 2.Microsoft Corporation USA rep. By Microsoft Corporation India P Ltd., 108, Dr.R.K. Road, Chennai 600 004. ... Respondents/Plaintiff & Defendant Prayer: Appeal filed under Order XXXVI Rule 9 of the O.S. Rule read with Clause 15 of the Letters Patent against the judgment and decretal order dated 12.6.2007 in Application No.2132 of 2007 in C.S.No.804 of 2002 on the file of this Court. For Appellant : Mr.R.Yashod Vardhan, Senior Counsel for Mr.R.Sunil Kumar For RR 1 : Mr.S.Silambanan, Senior counsel for Ms.C.Uma https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT M.VENUGOPAL,J. The O.S.A.No.190 of 2007 is preferred by the appellant/ 3rd party as against the orders passed by the learned Single Judge in impleading application No.2132 of 2007 in C.S.No.804 of 2002 dated 12.06.2007. 2.The appellant/applicant/3rd party has filed an Application No.495 of 2007 in C.S.No.804 of 2002 praying for a relief in striking out the name of the applicant, Microsoft Corporation India Pvt. Ltd., as representing the defendant Microsoft Corporation USA by deleting the words following Microsoft Corporation USA, namely, "represented by Microsoft Corporation India P Ltd., No.108, Dr.R.K. Road, Chennai 600 004" in the cause title and in the body of the plaint in the suit. 3.The first respondent/applicant/plaintiff has filed an Application No.2132 of 2007 seeking permission to implead the appellant as second defendant in the suit etc. 4.The learned Single Judge has passed a common order in Application Nos.495 and 2132 of 2007 on 12.06.2007 inter-alia observing that "the appellant herein is not only a necessary but also a proper party in the suit to decide the contentious issues involved and that the suit in regard to the proposed second defendant was deemed to have been instituted on the date when the suit was originally filed by the plaintiff as against the Microsoft USA" and resultantly allowed the said applications. 5.We have noticed the rival contentions of the parties. 6.We are of the opinion that the order of the learned Single Judge dated 12.06.2007 in allowing the impleading Application No.2132 of 2007 to the effect that "the appellant is a necessary and proper party" is correct and cannot be interfered with. 7.However, the observation of the learned Single Judge that "the suit as regards the proposed second defendant shall be deemed to have been instituted on the date when the suit was originally laid by the plaintiff as against Microsoft USA" is not warranted in our view, in view of the stand taken by the appellant that the claim of first respondent/plaintiff in the suit is barred by limitation. At this juncture, it is apt to point out the issue of limitation is a mixed question of Fact and Law which can be determined only at the time of trial of the suit. https://hcservices.ecourts.gov.in/hcservices/ 8.In that view of the matter, we are inclined to interfere with the order of the learned Single Judge passed in Application No.2132 of 2007 in C.S.No.804 of 2002 dated 12.06.2007 and set aside the observation 'that the proposed second defendant was deemed to have been instituted on the date when the suit was originally laid by the plaintiff as against Microsoft USA' in furtherance of substantial cause of justice and with this observation, the O.S.A.No.190 of 2007 stands disposed of. It is open to the appellant to raise the plea of Limitation in the trial of the suit in C.S.No.804 of 2002, in the manner known to law. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sgl Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Sub Asst Registrar, Original Side, High Court, Madras. + 1 cc to Mr. R. Sunilkumar, Advocate SR No.920 + 1 cc to Mrs. C. Uma, Advocate SR No. 741 NG(CO) SR/9.1.2008 Judgment in O.S.A.No.190 of 2007 https://hcservices.ecourts.gov.in/hcservices/