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dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.30904 OF 2013
WITS Interactive Private Limited .... Appellant
vs
Mr. Ashok Bisht & anr. .... Respondents
Mr. Rohit Das with Mr. Soumik Das i/by Rohit Das & Associates for the
Appellant.
Mr. Vishwajit Sawant with Mr. Vaibhav Sugdare, Samsher Garud,
Tushar Kadam i/by Jaykar & Partners for respondents.
CORAM: ANOOP V. MOHTA, J.
DATE : November 13, 2013 ORAL JUDGMENT:
The Appellant/original Plaintiff-employer has challenged order dated 25 October 2013 passed by the learned Judge, City Civil Court, Bombay, whereby refused to grant any ad interim relief against the Respondents/Defendants-ex-employees. There is no dispute with regard to the contractual terms of the employment which deals and covers the aspects of "confidentiality", "non-disclosure", "retention of documents and material", "non-competition", "injunctive reliefs" and the "employer's clientage list".
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2 The Respondents worked with the Appellant for more than
eight years. They resigned. Their resignation was accepted.
However, with direction to return/hand over the material as listed in letter dated 14 May 2013. The statement is made by the learned counsel appearing for the Respondents that they have already complied with the same.
3The learned counsel appearing for the Appellant, however, contended that though the injunction sought is only against the Respondents, not to deal with the client of the Appellant's company as listed in paragraph 15, there is no specific prayer against the parties who, even otherwise, can approach and/or meet and/or deal with the Respondents independently.
4 For ad-interim relief/injunction, in such matters, it is essential for the Appellant/plaintiff to substantiate the averments so made that the Respondents have been using and/or doing business by breaching the terms and conditions of the contract with the companies so listed. The companies or such parties, if are free to do the business with the Appellants and/or the Respondents, at this stage, merely because the Appellant got the information that the Respondents are ::: Downloaded on - 27/11/2013 20:32:17 ::: 3 906-aost-30904-13.sxw misusing the client list and soliciting them and/or approaching them and doing the business in competence, is a matter of evidence. The averments just cannot be accepted at this stage basically that there are no supporting affidavit and/or material placed on record to show that the Respondents approached them and not the parties.
5 The reliance of para 72 by the learned counsel appearing for the Appellant, in Diljeet Titus vs. Alfred A. Adebare & ors.1, which is as under:
"72 The information about clients and solicitors also to some extent is in public domain where it appears in printed directories and everyone can use the same. However, as an advocate or a law firm develops its work and relationship with other law firms or clients, the details about the particular persons in such law firms handling certain nature of work or as to which officer in a client's company is material for getting the work becomes of great importance. Such a list is of great importance to an advocate or a law firm.
The mere fact that defendants would have done work 1 MANU/DE/1875/2006 : 2006 (32) PTC 609 (Del) ::: Downloaded on - 27/11/2013 20:32:17 ::: 4 906-aost-30904-13.sxw for such clients while being associated with the plaintiff would not give them the right to reproduce the list and take it away. It may again be emphasized that it is possible that a part of this information is retained in the memory of the defendants and if that is utilized no grievance can be made in this behalf. This would, however, be different from a copy made of the list."
This is also of no assistance as the Respondents have not even filed reply to the Notice of Motion taken out by the Appellant which is pending before the learned trial Judge. There is no material even on record to show that the Respondents at any point of time admitted and/or conceded to the position/to the averments so made in the plaint, as well as, in supporting affidavit that they have been doing the business by breaching the terms and conditions so alleged. The submission that prima facie averments so made itself are sufficient to grant ad-interim relief as prayed, is not acceptable basically in view of the nature of agreement between the parties and so also the nature of business and work assigned to the Respondents of installation of the designed stalls in the Conference halls or malls as per the instructions. There is nothing on record to show that all these listed ::: Downloaded on - 27/11/2013 20:32:17 ::: 5 906-aost-30904-13.sxw companies have written agreement to do the business only with the Appellant, specifically when there is no further material on record to justify the nature of confidentiality which is referred and read in the agreement. If client list is the only material issue, in that case also, there is no averment that the Appellants do not possess those lists with them. The details of business and/or a list of client, if part of the Appellant's computer and/or record, to say that the Court to pass direction to provide the list and/or restrain them from using the list, in view of the above position on record and basically for want of supporting material at this stage prima facie stage, is not sufficient to grant ad interim relief as prayed.
6 The learned counsel appearing for the Appellants has also relied on the following judgments :
(i) MANU/DE/1215/2009 - Desiccant Rotors International Pvt. Ltd vs. Bappaditya Sarkar and anr.
(ii) MANU/DE/2671/2006 - Wipro Limited v. Beckman Coulter International S.A.
(iii) Unreported judgment of Calcutta High Court dated 27.03.2012 in CS No.77 of 2012- Embee Software Private ::: Downloaded on - 27/11/2013 20:32:17 ::: 6 906-aost-30904-13.sxw Limited v. Samir Kumar Shaw & ors.
(iv) MANU/MH/0406/2003 - Star India Private Limited v.
Laxmiraj Seetharam Nayak and anr.
(v) MANU/MH/0243/2003 - Zee Telefilms Ltd and Film and Shot and anr. v. Sundial Communications Pvt.Ltd and ors.
(vi) MANU/MH/0955/2010 - Bombay Dyeing and Manufacturing Co.Ltd v. Mehar Karan Singh.
The learned counsel appearing for the Respondent has relied on Star India Private Limited vs. Laxmiraj Seetharam Nayak & anr., 2003 (3) Bom C.R. 563.
7 The judgments so cited by the learned counsel appearing for the Appellants revolving around the confidentiality and/or trade secret and/or non-solicitation are not sufficient at this stage to grant the ad interim relief as sought basically for want of supporting material. Vague averments and/or the averments, based upon the information so collected itself means the Appellant has no direct knowledge and/or information of the activities and/or business dealing of the Respondents. The burden lies upon the Appellant/plaintiff to show and make out a prima facie case which, in ::: Downloaded on - 27/11/2013 20:32:17 ::: 7 906-aost-30904-13.sxw my view, is not fully discharged.
8 Assuming for a moment that there are some material and/or information so gathered, but the gap from the date of resignation and the delay in filing of the suit and the injunction application itself dilutes the case force and the submission of balance of convenience and/or equity, as sought to be contended by the learned counsel appearing for the Appellant. The secret/confidentiality and/or material so read and referred which are part of the computer record and/or electronic record, in a second can be collected and/or transmitted by anyone to anybody. After so many months, the Appellant's application for injunction on the basis of information they stated to be collected, in my view, is of no assistance to support the case of ad-interim relief as sought.
9 The law and the provision so read and referred by the learned counsel appearing or the Appellant are not in dispute.
However, it is necessary while passing ad interim relief in such matter for the Court to consider the avements and the material placed on record, in my view, are not available at this stage or at least no case is made out for grant of ad interim relief so sought. This, in no way, ::: Downloaded on - 27/11/2013 20:32:17 ::: 8 906-aost-30904-13.sxw disentitle the Appellant/plaintiff to file additional affidavit and/or supporting material before the trial Court at the time of final hearing of the Notice of Motion.
10 With this liberty, the present Appeal from Order is dismissed. All points are kept open. The observation so made are only for disposing of the present Appeal. The Notice of Motion is expedited. The Respondents to file reply within two weeks. The parties to file additional affidavit, if any. The Notice of Motion be disposed of preferably within six weeks.
11 No costs.
(ANOOP V. MOHTA, J.)
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