SADEEV SINGH SANDHU Vs. TURK GUTENBERGSTRASSE

JUDGEMENT

(1.) In the suit for the relief of perpetual injunction, seeking the restraint of the defendants from engaging or entering into or agree to enter into any business/commercial arrangement with any other person in India or outside for carrying on commercial activities in India, directly or indirectly, in the field of computer software till July, 1997 and also for a perpetual injunction from carrying on business of computer softwares in India for a period of two years after the expiry of the present contract i.e. w.e.f. July,1995 to July,1997 and for a mandatory injunction directing the defendants to fulfil and comply with their commitments made in the joint venture agreement dated 5.5.1994, the plaintiff, by IA No. 1211/95 prays for ad-interim injunction in identical terms pending hearing and disposal of the suit. By IA 3080/95, under Rule 4 of Order 39 CPC, the defendants pray for vacation of the ex parte injunction.

(2.) . It is not in dispute that the plaintiffand defendantsentered into agreement dated 5.5.1994 for the Joint Venture Business thereby deciding to jointly work towards programming and development of the computers software in India for the International Market. The said joint venture company, as agreed, was to be called "KAUSAR-TURCK Software Factory Private Limited (KTSFPL)". In to the agreement, it is also admitted that the execution of the joint venture, would be fundamental in two stages, the first stage being the experimental stage for a period of one year upto July, 1995 and in the event of experimental stage being successful for both the parties, the second stage would commence from August, 1995. It is also not much in dispute that in the event of experimental stage proving unsuccessful to either party, TURCK (the defendant) would take back its technology, equipments etc. and that the plaintiff and defendants will in this case, not, in any way, use the technology and know-how provided by TURCK for any software development and that the defendants will in this case,not operate or haveany activity in India directly or indirectly independently or with any other party/parties in the field of software for a time period of two years. The joint venture agreement dated 5.5.94 admittedly provides for reference of dispute tothe arbitration, as provided in clause 23 thereof.

(3.) . It is the submission of Mr. Singh, counsel for the plaintiff that the defendant committed breach of agreement inasmuch as the shareholding has been changed from 50-50% to 51% (defendants) and 49% (plaintiffs) AND that the representation to the Board of Directors is also changed from equal to 3-2 i.e. 3 (Defendants) and 2 (plaintiff); that the project started on 3.1.1995; that under clause 14, there is total ban of operation for a period of two years and that the relief in plaint para 31 is in accordance withthe contract; that the defendant has been actually carrying on software business; that the persons in employment of the plaintiff by identical letters of resignations left the plaintiff and that the defendant has been committing breach of agreement, especially clause 14; that the letter dated 20.10.94, is procedural and doesnot bring the agreement within the improbability of performance and that the contract has not frustrated and that sections 14 and 41 of the Specific Relief Act do not apply as the contract doesnot provide for the consequences of the damages.