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Delhi High Court - Orders

Hpg Consulting India Pvt Ltd vs Neel Kamal Chauhan & Ors on 18 February, 2021

Author: Jayant Nath

Bench: Jayant Nath

                          $~OS-23
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CS(COMM) 86/2021

                                HPG CONSULTING INDIA PVT LTD        ..... Plaintiff
                                             Through     Mr.Shashank Sharma and Mr. Deepak
                                             Juneja, Advs.

                                                    versus

                                NEEL KAMAL CHAUHAN & ORS.                     ..... Defendants
                                            Through

                                CORAM:
                                HON'BLE MR. JUSTICE JAYANT NATH
                                                   ORDER

% 18.02.2021 This hearing is conducted through video-conferencing.

IA Nos. 2552/2021, 2554/2021 and 2558/2021 The applications are allowed subject to all just exceptions. IA No.2555/2021 (u/S 12 A (1) of the Commercial Courts Act, 2015) In view of the urgency, pre-suit mediation and settlement is not necessary.

This application is allowed CS(COMM) 86/2021 Let the plaint be registered as a suit.

Issue summons to defendants through speed post, courier and email, returnable for 11.05.2021.

1. This is an application filed under Order 39 Rules 1 and 2 CPC seeking Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:23.03.2021 14:47:59 an interim injunction to restrain the defendants, their founders, promoters, etc. from using and infringing the copyrighted work of the plaintiff or from passing off the copyrighted work of the plaintiff. Other connected reliefs are also sought.

2. It is the case of the plaintiff that it is a domestically and internationally reputed business providing facilities planning and designing consultancy for food and beverage areas, laundry area, etc. designing for existing and upcoming hotels & resorts, restaurants, food courts, multi use mega projects like SEZ's and IT parks, convention Centres, etc. It is stated that the plaintiff has a long list of clients and has provided services for almost every big name in the hospitality industry like the Hiltons, J.W. Marriot Group, etc. Defendants No. 1 to 3 are the ex-employees of the plaintiff. Defendant No. 4 is a company incorporated on 02.04.2020 by defendant No. 1 and 2 immediately after unexpectedly resigning from the service of the plaintiff in March 2020 and is in a business identical to that of the plaintiff. Defendant No. 3 resigned in June 2020 and subsequently, joined defendant No. 4.

3. It is the case of the plaintiff that defendants no. 1 and 2 were employees of the plaintiff since 2007-2008 and were in top management hierarchy of the plaintiff. On 09.03.2020, defendant No. 1 suddenly and unexpectedly resigned and became unreachable and did not attend office even once to return the plaintiff's properties in his possession or handover the charge or to serve the notice period. The office laptop retrieved from defendant No.1 revealed that all the plaintiff's data, files, folders, etc. were completely wiped clean and deleted. Similarly, all contacts, messages, etc. were wiped clean and deleted from the official SIM card. Similar is the case Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:23.03.2021 14:47:59 of the official email ID and contacts, etc. On 04.05.2020, an email was accidentally received on the erstwhile office email ID of defendant No. 1 from one Mr. Ilker Emanet regarding certain hotel projects in Douala, Cameroon. The contents of the said email revealed the clandestine activities of the defendants. The said email revealed that the kitchen equipment specifications linked in the email are the edited version of the respective kitchen equipment specifications of the plaintiff and were passed off by defendant No.4 to its clients as its own after removing the trade name, logo and other particulars of the plaintiff from the header and footer of the body of the document. It is pleaded that the information received from the laptop retrieved from defendant No. 1 shows that while being the employees of the plaintiff, defendants No. 1 and 2 secretly started a competing consulting firm called "HPTS Consulting" and after resigning from the plaintiff company, they incorporated the said firm into "HPTS Consulting India Pvt. Ltd." i.e. Defendant No. 4. Before departing, they made unauthorized copies of the confidential and copyrighted data of the plaintiff and are infringing it and passing it off as their own for carrying out the business of defendant No. 4 for profit.

4. It is the case of the plaintiff that the copyrighted data of the plaintiff is created by its 35 plus workforce working in tandem on different parts and aspects of the project. The copyrighted data is shared only with the client for the purpose of construction of the facilities, procurement and installation of the equipment's and maintenance and is therefore confidential and trade secret.

5. It is also pointed that during September 2019 to March 2020, the plaintiff placed bids on large number of projects through defendants No. 1 Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:23.03.2021 14:47:59 and 2. The said defendants also placed lower bids while being the employees of the plaintiff in the name of HPTS Consulting to win these projects. In some cases, defendants No. 1 and 2 inflated the bid value of the plaintiff much above the value discussed with the CEO of the plaintiff and clandestinely took steps to win the bids. It is stated that loss caused to the plaintiff based on the bid value is to tune of Rs.1.77 crores. Hence, the present suit.

6. The plaintiff has made out a prima facie case. Balance of convenience is also in favour of the plaintiff. The defendants are restrained by an ex parte injunction from infringing the copyrighted work of the plaintiff or from passing off the copyrighted work of the plaintiff. The defendants are also restrained from disclosing, sharing, distributing, sending, uploading, etc. the copyrighted work of the plaintiff in original or in deceptively similar form to any person or entity.

7. The plaintiff to comply with Order 39 Rule 3 CPC within 10 days from today.

8. Issue notice to the defendants through speed post, courier and email, returnable for 11.05.2021.

IA No. 2556/2021 (u/S75 r/w Order 26 Rule 9 CPC)

1. This is an application filed under Order 26 Rule 9 CPC seeking appointment of a Court Commissioner for inquiry into the plaintiff's copyrighted material under illegal possession and control of the defendants.

2. It is pleaded in the present application that unless a Court Commissioner is appointed to get access to the unauthorised copies of the copyrighted material of the plaintiff which are stored in electronic devices and computers owned and operated by the defendants, the interim injunction Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:23.03.2021 14:47:59 order passed by this court today would become redundant and infructuous.

3. Learned counsel for the plaintiff urges that the defendants on coming to know of the suit may delete or destroy or hideaway all the relevant data sheets, arrangements, systems, etc. which are in their computers and it would not be possible for the plaintiff to ensure compliance of the interim orders of this court or to process the present suit.

4. There is merit in the plea raised by the learned counsel for the plaintiff. The application is allowed accordingly.

5. Mr.Siddhartha Shukla, Advocate (Mobile No.: +91-9013495751) is appointed as a Local Commission to visit the following premises of defendant No.4:-

HPTS CONSULTING INDIA PVT. LTD., WZ 106 / 138, SECOND FLOOR, RAJOURI GARDEN, NEW DELHI - 110027

6. The Local Commissioner will inspect all the electronic devices like laptops, computers, storage devices such as portable hard disks, pen drives, cloud platform, etc. owned and operated by the defendants and will copy the same. The same shall be filed in a sealed cover in the court which shall only be opened on the directions of the court. A technical expert of the plaintiff is permitted to accompany the Local Commissioner to assist the Local Commissioner in complying with the aforesaid directions. The Local Commissioner would be at liberty to break open the locks, if any resistance is shown with the help of local police. The SHO of the concerned police station is directed to ensure proper police protection to the learned Local Commissioner.

7. The Local Commissioner may file his report within 10 days from today. The fee of the Local Commissioner is fixed at Rs.1,00,000/- (Rupees One Lakh) plus out of pocket expenses to be paid by the plaintiff in advance.

8. The application stands disposed of.

Issue notice to defendants through speed post, courier and email, returnable for 11.05.2021.

This order will not be uploaded till the lapse of a period of 10 days from today.

A copy of this order be given dasti under the signatures of the Court Master to the learned counsel for the plaintiff and to the learned Local Commissioner.

JAYANT NATH, J FEBRUARY 18, 2021 rb Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:23.03.2021 14:47:59