Wits Interactive Private Limited vs Mr. Ashok Bisht & Anr
2013 Latest Caselaw 142 Bom

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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.

The 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

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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)

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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

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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

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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

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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,

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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.)