USHA DRAGER PVT LTD Vs. DRAEGERWERK AKTIENGESELLSCHAFT

JUDGEMENT

(1.) The application (IA 3171/04) for interim relief arises from a suit for permanent injunction and rendition of accounts and is based upon clause 6 of the Joint Venture Agreement (hereinafter referred to as the JVA or Agreement) dated 9th May 1987 said to be in the nature of a non compete clause between the parties.

(2.) The case of the plaintiff is as under:- (a) One Usha Services and Consultants Ltd., (hereinafter referred to as 'Usha') and RKKR Infotech (P) Ltd., plaintiff No.2 entered !nto a 50:50 joint venture with Draegerwerk Aktiengesellschaft (hereinafter referred to as 'Draeger'), defendant No 1 to form a Joint Venture Company by the name of Usha Drager Pvt. Ltd., plaintiff No.1, as per clause 4 of the Agreement. Article 2 of the Articles of Association of the plaintiff No.l defines Drager and USHA as under:

(3.) The sum and substance of the defendant's case is: a) no contract whatsoever, exists between the joint venture and Draeger. Therefore, plaintiff could not be permitted to seek an injunction in respect of a contract to which the plaintiff is not a party; b) without impleading Draeger Medical as a party in the present suit, the plaintiff cannot seek to lift the corporate veil of the said Company; c) USHA and not UDPL is entitled to enforce the non compete clause in the joint venture agreement; d) since Usha Services does not hold any shares in UDPL, the joint venture has ceased to exist; e) the plaintiff, in the guise of seeking an injunction and claiming damages for breach of contract cannot be permitted to claim specific performance of the said contract. Thus, even if it is assumed that the plaintiff has the locus standi, specific performance should not be granted since compensation in money for non performance would afford adequate relief in the present case.