Delhi District Court
Premier Shield Private Limited vs Rajesh Kumar Chopra & Ors on 2 August, 2014
1
In the Court of Sh. Rakesh Pandit, Additional District Judge3, South
East, Saket Courts, New Delhi
CS no. 89/14
Premier Shield Private Limited ....... Plaintiff
v e r s u s
Rajesh Kumar Chopra & Ors. .....Defendants
ORDER
1 By this order I will dispose of application u/o.39 r.1&2 CPC filed on behalf of plaintiff.
2 The brief facts of the case as per plaintiff are that it is duly incorporated company having expertise in security solutions and risk management enterprise. It provides to its clients guarding services, executive protection, electronic security systems, cash management solutions etc., and has a great good will. It has a strong client base including a large number of corporate houses. The plaintiff is in this business for more than 30 years. Plaintiff stores its data on "FOXPRO" software in "DOS mode". The data is placed over "Novell Sever System". It has restricted access. Due to the unique management of this data, the plaintiff has copyright over this data. CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 1/12 2 3 Defendant no. 1 joined the plaintiff as a Director FMS on 06.12.2012 vide appointment letter dated 08.12.2012. Apart from this Appointment Letter, defendant also signed confidentiality agreement dated 05.06.2012 and NonDisclosure and Conflict of Interest agreement dated 05.06.2012. The defendant left the company illegally and without obtaining no dues certificate, on 08.02.2013. However, plaintiff joined defendant no. 2 somewhere in March, 2013 against the confidentiality agreement. Plaintiff apprehends that defendant no. 1 will use all the information with him for the use of defendant no. 2. It is stated that the defendant no. 2 had tried to contact with one of its client through defendant no. 1 by using this confidential information.
In the prayer clause of the suit plaintiff has sought a decree of permanent injunction against the defendant by restraining them from wrongfully using the details of business of plaintiff, decree of mandatory injunction directing the defendant to deliver the said data and decree of damages.
4 In the written statement filed on behalf of defendant no. 1, it is stated that the alleged data has no copyright of that of plaintiff. It is stated that it is the plaintiff who is not clearing the dues of defendant no. 1 and now this frivolous suit is filed. It is stated that no data have been taken or used by the defendant.
CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 2/12 3 5 Similar type of defence is taken by defendant no. 2 stating that it have not used any data belonging to the plaintiff. 6 In replication plaintiff reiterated and reaffirmed the contents of plaintiff and denied those of written statement of defendant no. 2.
7 In this application u/o.39 r.1&2 CPC plaintiff has sought that temporary injunction be passed thereby defendants etc be restrained from soliciting the client of plaintiff using the details of the business of the plaintiff i.e. in anyway making wrongful gain from the data of the plaintiff which is wrongfully in their possession. 8 I have gone through the pleadings of the case, replication, documents on record and submissions forwarded by counsels for the parties.
9 As far as the contractual relationship between parties i.e. plaintiff and defendant no. 1 is concerned, these are governed by three documents i.e. letter of appointment dated 08.06.2012, confidentiality agreement dated 05.06.2012 and nondisclosure and conflict of interest agreement dated 05.06.2012.
CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 3/12 4 10 The relevant clauses for the purposes of the present controversy, document wise are as follows:
(a)Letter of appointment dated 08.06.2012:
Clause no. 6(c) "You will not disclose to any person business plans, process, methods, reports, manuals or any other material orders which you come to know during your employment with the Company. Breach of this clause can make you liable for liquidated damages."
(b)Confidentiality agreement dated 05.06.2012:
Clause no. 3 "Upon termination of employment, the Employee will return to the Employer, retaining no copies, all documents relating to the Employer's business including, but no limited to, reports, manuals, drawings, diagrams, blueprints, correspondence, customer lists, computer programs, and all other materials and all copies of such materials, obtained by the Employee during employment."
(c) nondisclosure and conflict of interest agreement Clause no. 9 "For a period of one year after the conclusion of my employment I will not invest in or discuss with anyone outside the company the investment potential or any business activities of any of the Company's clients or of the CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 4/12 5 entities which are the subject of the company's work either during the term of my employment or for a period of one year thereafter."
11 Now clause 6 of Letter of Appointment and clause 3 of and Confidentiality Agreement, there are specific things which are not to be disclosed or to be written. However, in the plaint plaintiff has not divulged the nature of the exact information with the defendant no. 1 is disclosing or not returning. Moreover, there is no specificity as to what such information from the defendant no. 1, defendant no.2 is gaining for soliciting the alleged clients of plaintiff. 12 As far as the clause 6 of letter of appointment, it says about certain things for not disclosing. No such thing is mentioned by the plaintiff in its plaint.
13 Similar is the position with respect to clause 3 of confidentiality agreement. No description of data which the defendant no. 1 has allegedly stolen or kept is given by the plaintiff in its plaint. 14 As far as the third document i.e. nondisclosure and conflict of interest agreement dated 05.06.2012, the same is operative till one year from the date of leaving employment. Defendant no. 1 has left the employment on 08.02.2013 and as on now already one year has elapsed. Moreover, the arguments of the plaintiff regarding CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 5/12 6 para 24 of its plaint i.e. the defendant no. 1 should not have joined defendant no. 2 before the lapse of one year, is violative of Sec.27 of Indian Contract Act.
15 In these circumstances, in the absence of the specific pleadings as to the nature of material which the defendant no. 1 has taken or kept with him which belongs to the plaintiff, I think the case is not covered by the aforesaid clauses mentioned in the aforesaid documents. Moreover, already one year has elapsed, so the plaintiff himself has limited the nondisclosure agreement for one year, no injunction can be granted as on today.
16 The claim of the plaintiff that defendant no. 1 has not cleared the dues and not returned the material, appears to be hollow since it is not mentioned anywhere in the pleadings as to what efforts have been done to recover the same. Even in the notice dated 15.03.2013, no such recovery has been sought except mentioning that some documents are not handed over.
17 Moreover, it is not possible to assess from record as to whether the defendant no. 2 is allegedly using his own knowledge to conversate with the other corporates or using the data of plaintiff. Had defendant no. 2 been using on its own resources then passing an CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 6/12 7 injunction against it, will amount to the infringement of Article 25 of the Constitution of India as well as violative to Sec.27 of Indian Contract Act.
18 It is further submitted by counsel for the defendant that apart from a contract of confidentiality and nondisclosure, the defendants should be restrained from using the said data as the plaintiff has copyright over the said data. 19 As far as this plea of the plaintiff is concerned, it is to be examined as to whether:
(a) the data as suggested by the plaintiff, is copyright material.
(b) who is the owner of that copyright material/data.
(c) whether there is any infringement of the said copyright material.
(d) If the answer to (c) is in yes, then what remedy should follow.
20 It is argued by the counsel for the plaintiff that the nature of work/data kept by the plaintiff is covered under the definition u/s.2(o) of the Copyright Act, 1957 i.e. it is "literary work". No doubt the data as suggested by the plaintiff is covered in the definition of literary work since it is computer data bases.
21 Similarly, in view of Sec.13(1)(a) of Copyright Act, 1957, the copyright exists in such computer data bases and plaintiff is owner of such copyright.
CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 7/12 8 22 Now as per Sec.14 of Copyright Act, 1957, the owner of the copyright have following exclusive rights in the case of such data (as that of plaintiff):
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means.
(ii) to issue copies of the work to the public not being copies already in circulation.
(iii) to perform the work in public or communicate it to the public.
(iv) to make any cinematograph film or sound recording in respect of the work.
(v) to make any translation of the work.
(vi) to make any adaptation of the work.
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to work as defined in (i) to (vi).
(viii) to sell or give on commercial rental or offer for sale or for commercial rental, any copy of computer program. So, in these circumstances, the owner of the copyright i.e. plaintiff, of his data base can do such things with his data base. 23 Now let us see, when such copyright is infringed. As per Sec.51 of the Copyright Act, 1957, the conditions are laid down as to when a copyright gets infringed. The Sec.51 is as belows: When copyright infringed. Copyright in a work shall be deemed to be infringed:
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 8/12 9 condition imposed by a competent authority under this Act,
(i)does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii)permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and hand no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person,
(i) makes for sale or hire, or sells or lets for hire, or by way of displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work:
(Provided that nothing in suchclause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer).
24 Now, if the copyright is infringed, the plaintiff can take civil remedies as per Sec.55 of the Copyright Act, 1957 which includes injunction, damages etc. CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 9/12 10 25 Now admittedly, as per my reasoning above, the data stored by the plaintiff is a "literary work" and thus have copyright in favour of plaintiff.
26 Now let us see from the record whether the plaintiff has alleged necessary facts which makes out its case that there is infringement. The infringement can happen if the defendants does any acts as per Sec.51 or any acts as mentioned in Sec.13(1)(a) of Copyright Act, without the permission of the plaintiff. 27 Now as far as Sec.51 of Copyright Act is concerned, plaintiff failed to place on record the necessary facts as to how the said copyright is infringed i.e. he had used the said data for the communication of work to the public or sell or hired or displayed or offers for displayed or distributes for the purpose of trade or by way of trade exhibits in public. Similarly, in terms of Sec.13(1)(a), plaintiff has not placed on record any facts i.e. reproduced the work, issued copies of work to the public, perform the work in the public, made any cinematograph film, or make any translation of work, or adaptation of work. (Public as defined in Sec.3 of Copyright Act,1957) 28 In these circumstances, without the specific pleadings, it CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 10/12 11 is very difficult to ascertain that what acts of defendant/s constitutes the infringement of copyright material of the plaintiffs. The only vague allegation against the defendants are that plaintiff came to know from one Mr. Aseem Saxena that defendants are using the copyright data base to contract the former/prospective employees, is not tenable. No such act is covered in Sec.51 of The Copyright Act. 29 In these circumstances, though the court expresses that the data base of the plaintiff is a copyright material, the copyright of which vests with the plaintiff, but in the absence of specific averments, plaintiff could not make out a case that there is any infringement of the said copyright material.
30 Since, the basis of the injunction sought by the plaintiff is not concrete and thus does not create any prima facie case in its favour. Balance of convenience also does not lie in its favour. Moreover, the plaintiff has also sought damages and thus it himself has opted this option, so it cannot be said that it will suffer irreparable loss which cannot be compensated with money.
31 In these circumstances, the application u/o.39 r.1&2 CPC CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 11/12 12 is dismissed.
Nothing expressed herein shall effect the merits of the case.
Announced in the open court (Rakesh Pandit) on 02.08.2014 Addl. District Judge03, South East, Saket Courts, New Delhi CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 12/12 13 CS No. 89/14 Premier Shield Vs. Rajesh Kumar Chopra & Ors.
02.08.2014
At 4.00 p.m.
Present: None.
Vide separate order the application of plaintiff u/o.39 r.1& 2 CPC is dismissed. IO, if any, stands vacated. Put up for filing of original documents, if any, admission/denial, if any, of documents and framing of issues on 11.09.2014.
(Rakesh Pandit) Addl. District Judge03, South East Saket Courts, New Delhi/02.08.2014 CS no. 89/14 Premier Shield Vs. Rajesh Kumar Chopra page 13/12