Copyrights--Suit for injunction and rendition of accounts--Impleadment of Indian subsidiary company as necessary party along with foreign parent online search company held to justified

AMOL RATTAN SINGH, J.

1. By this petition, the petitioner company challenges the order of the learned trial court (Additional District Judge, Amritsar), dated 24.05.2018 (Annexure P-1), by which its application under Order 1 Rule 10 CPC, seeking that it be deleted from the array of parties, has been dismissed.

The petitioner has been impleaded as defendant no.2 in the suit filed by respondent no.1 herein (the plaintiff), seeking a decree of permanent injunction restraining all the 8 defendants therein from using the plaintiffs' literary work, as also from using "keywords of books, title name, Author name as Rajesh Duseja, seller name as Rajesh Duseja, ISBN Numbers, book id, Images, Create space name as publisher, ASIN numbers URLs, webpages, publishing date, Item number, book pages, book size, book format, book weight advertisement, sharing".

In the suit, the plaintiff also seeks a rendition of accounts by all the defendants as regards the profits earned by them from the books stated to have been published by the plaintiff, still further seeking damages / compensation to him, for illegally and unauthorizedly using the material.

2. In its application under Order 1 Rule 10 CPC (copy Annexure P-4), the petitioner contended that the grievance of the respondent-plaintiff as regards the allegation concerning defendants no.1 and 2, actually only concerns defendant no.1, i.e. Microsoft Corporation, Redmond, Washington, USA and that the petitioner, i.e. Microsoft Corporation Pvt. Ltd., Gurugram, has only been impleaded on "a mistaken basis" as it has no role to play in the operation of the search engine, 'Bing', because the allegation with regard to infringement of copyright is directed against the said search engine, which is owned and operated wholly by defendant no.1 (respondent no.2 in this petition).

It is further contended in the application that the only relationship between the petitioner and respondent no.2 herein, is that the petitioner is a subsidiary of respondent no.2 which is its parent company, but with the petitioner being a separate legal entity, not involved at all in the "alleged infringing activity".

Yet further, it is contended in paragraph 5 of the application as follows:-

"It is submitted that there is nothing on record to show that the Defendant No.2 is controlling the platform 'Bing'. It is submitted that the Defendant No.2 is making a categorical assertion that it does not own or operate 'Bing' and has no control over the same. It is submitted that the mere fact that Defendant No.2 happens to be the subsidiary of Defendant No.1, does not automatically make it a necessary or proper party to the present suit. The defendant No.1 & 2 are separate legal entities and has been impleaded separately as such."

On the aforesaid contentions, the application was sought to be allowed, with the petitioner sought to be deleted from the array of defendants.

3. A reply was filed by the respondent-plaintiff to the aforesaid application, a copy of which has been annexed as Annexure P-6 with the present petition.

A perusal thereof shows that a preliminary objection has been taken by him that true and material facts had been concealed from the trial court by the applicant, including the fact that in a suit before the Delhi High Court (Blueberry Books and others v. Google India Pvt. Ltd. and others), the applicant had "agreed itself a party" and consequently, the application before the trial court at Amritsar (in the present lis), was only to mislead the court.

It was next contended, also by way of a preliminary objection, that in the matter of infringement of literary works of the plaintiff, he had moved Complaint no.3939/COP dated 22.11.2014 to the Commissioner of Police, Amritsar, and the petitioner had been summoned by the police many times, which also was a fact kept concealed by it from the trial court.

4. On the merits of the application, the plaintiff has submitted that as the URL does not appear automatically "on the Bing sea