Microsoft Corporation India P. Ltd. vs Pace Automation Limited and Microsoft Corporation

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.

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.

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.

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.

We have noticed the rival contentions of the parties.

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.

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.

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.