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2022 (4) TMI 631 - DELHI HIGH COURTSuit seeking mandatory and permanent injunction against the defendants - seeking restraint from passing off and violating the registered trademark and trade names of the defendant no. 4 Company - seeking declaration in respect of the properties purchased by the defendants from the income and revenue of the defendant no.4 Company - Order VII Rule 10 of the CPC - HELD THAT:- Admittedly, some of the reliefs claimed in the plaint, which pertain to enforcement of intellectual property rights, can only be granted by a Civil Court and cannot be a subject matter of proceedings under the Companies Act, even as per the contesting defendants. Even if the contention of the contesting defendants is accepted that there is similarity of reliefs sought in the present suit with the relief sought under the Company Petition, whereby the defendants are sought to be injuncted from continuing or carrying out the competing businesses, it may be relevant to note that the defendants no.5 and 6, in respect of whom the present reliefs are sought, were not parties to the proceedings before the NCLT. Furthermore, there cannot be a partial rejection of a suit under the provisions of Order VII Rule 11 of the CPC. In any event, the proceedings before the NCLT had been instituted by the defendant no.7 and not by the plaintiffs herein. Just because one of the shareholders has chosen to invoke their grievance under the provisions of the Companies Act, cannot imply that another shareholder with similar grievance cannot invoke their grievance before a Civil Court, if the jurisdiction of the Civil Court is otherwise made out. In respect of the contention of the contesting defendants that the present suit, filed as a derivative suit, is not maintainable as the plaintiffs are majority shareholders in the defendant no. 4 Company, it may be relevant to note that a derivative action on behalf of a company is filed to redress a wrong done to a company by the persons in control of the company. In the normal circumstances, the company itself would have filed a suit, but is unable to do so on account of the wrong doers being in control of the company. Therefore, the concept of derivative action was derived by courts in the United States of America, where shareholders/persons file an action to redress or undo the wrong done to the company, on behalf of the company. Therefore, in reality, company is the actual plaintiff. It cannot be said that the present action is not maintainable in this regard because the plaintiffs are majority shareholders in the defendant no.4 Company. In the opinion of this Court, even though the plaintiffs have given a tentative value of ₹ 50,00,00,000/- in the plaint, that is only an estimate and cannot be a basis for the plaintiffs to be asked to pay ad valorem Court fees on the said figure. Since in the present case also, the plaintiffs have already given an estimate, they can avail the benefit the making up the deficiency once the accounts are settled and the amount is determined. In this regard, the contesting defendants’ reliance placed on the provisions of Order XII Rule 6 of the CPC is misplaced as there is no clearcut admission on behalf of the plaintiffs - Furthermore, the plaintiffs have undertaken to deposit such Court fees, as be directed by this Court to be paid in respect of the reliefs being sought in the present suit. Thus, the plaintiffs would only be liable to pay the Court fees upon the final determination that is arrived by the Court, of the amounts payable after rendition of accounts. The present suit cannot be rejected under the provisions of Order VII Rule 11 of CPC on account of deficiency of Court fees - Application dismissed.
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