Bangalore District Court
Collabrix Hr Private Limited vs Cubiclogics India Private Limited on 22 October, 2024
KABC010089662021
In the Court of the XXXIV Additional City Civil and Sessions Judge,
Bengaluru, (CCH -35)
Dated this the 22nd day of October, 2024
Present :-
Sri. Vijeth.V, B.A.L., LL.B.,
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.
O.S. NO.2464/2021
Plaintiffs : 1. Collabrix Hr Private Limited
having its registered office at 3B
Glenmoor Apartments, 125, 3rd Main,
Defense Colony
Indiranagara
Bengaluru.
(By Sri.M.D., Advocate)
V/s.
Defendants : 1. Cubiclogics India Private Limited
2nd Floor, 407, 1st 'C' Main Road
7th Block, Koramangala
2
O.S. No.2464/2021
Bengaluru-560 095
Ph : +91-80-4111 9000
Emailo : [email protected]
(By Sri.M.S., Advocate for defendant)
Date of Institution of the suit : 09.04.2021
Nature of the suit : Injunction
Date of commencement of : 23.01.2023
recording of evidence
Date on which the judgment : 22.10.2024
was pronounced
Total Duration Years Months Days
03 06 13
JUDGMENT
The plaintiff has filed the present suit against the defendant for declaration that the defendant has violated its obligation to handle the plaintiffs data and information under the Information and Technology Act 2000 and Indian Contract Act 1872 and for permanent injunction to direct the defendant to grant plaintiff access 3 O.S. No.2464/2021 to its Android application Aaitra, its website www.aaitra.com, database files and Source Code along with costs.
2. The brief facts of the plaintiff's case is as under; The plaintiff is a Start Up Private Limited Company that was incorporated in December 2016 offering automated services in the filed of Employee Recruitment & Human Resource Management. The defendant is an enterprise providing a cloud based storage and computing services. Pursuant to the mail dated 12.11.2019 by the plaintiff to the defendant, the plaintiff shifted its data and applications to the Microsoft Cloud Azure Platform operated by the defendant. The plaintiff migrated its web based and android applications, its website www.aaitra.com, database files and sources code (collectively referred to as Aaitra Plat Form) along with the associated data form the Amazon Web Services Server to the Defendants server in November 2019. The defendant also sent the E- mail dated 29.11.2019 confirming the server details to the plaintiff. 4
O.S. No.2464/2021 Therefore the plaintiff successfully migrated its web based and android applications,its website www.aaitra.com, data base files and Source Code which is intrinsically connected to the functioning of the plaintiff's business from the servers of Amazon wen services to the defendants server. The successful migration to the defendants server was confirmed through an email dated 22.11.2019 wherein there was a successful testing of the plaintiff's Aaitra Platform on the defendants servers. A one time migration charges of Rs.35,400/- was also paid by the plaintiff to the defendant for migrating its Aaitra Plat Form to the defendants server. Owing to the lock-down imposed all over the country on account of Covid-19 in March 2020 and due to other business factors there was a significant drop in the revenues of the plaintiff as its clients did not pay their dues. Therefore, the plaintiff sought additional time to clear the dues owned to the defendant on account of the quarterly services rental charges which was accepted by the defendant. In June 2020 the plaintiff tried to access its data on the defendants servers and to its utter shock and disbelief, the plaintiff realized that it could not access the Aaitra Plat 5 O.S. No.2464/2021 Form located on the defendants servers. The defendant had wrongly blocked access to the plaintiff's Aaitra Plat Form, despite agreeing to the plaintiff request for grant of additional time in order to clear the dues owed to the defendant. Therefore, the plaintiff addressed a mail dated 14.07.2020 to the defendant requesting access to its servers and also stated that it was ready to make installment payments of the outstanding dues to the defendant. However, the defendant in a malafide manner rejected the request to the plaintiff. Consequently, the plaintiffs business came to a halt as it was not able to access Aaitra Plat Form along with the website thereby suffering enormous amount of financial and reputation loss and it is also lost several investment options. Subsequently the defendant started threatening the plaintiff that they would delete the plaintiffs Aaitra Plat Form and after several pleas by the plaintiff the defendant agreed to grant plaintiff access to its servers on payment of 50% of the outstanding payment by the plaintiff. On 18.07.2020 the plaintiff paid 50% of the outstanding dues and requested the defendant to grant it access to the defendants servers for the purposes of testing the Aaitra Platform 6 O.S. No.2464/2021 and getting it ready for restarting their business operations. The defendant through mail dated 20.07.2020 acknowledged receipts of payment. The plaintiff of payment of 50% of the outstanding payment was granted access to the defendants servers. When the plaintiff tried to access the services on the relevant IP Address assigned to Aaitra Plat Form, the plaintiff discovered that its Aaitra Plat Form along with the associated date was completely blank and apprehended that its data had been misplaced due to the malafide tampering and actions of the defendant. The plaintiff addressed a mail on 21.08.2020 to the defendant seeking immediate access to its Aaitra Plat Form. In response to the mail dated 21.08.2020 the plaintiff issued an untenable response stating that the issue was related to domain DNS and that if there were no records, the plaintiff could not access the web site and the application.
Further, thereafter the plaintiff addressed mails to the defendants that its web based servers were completely blank and stated that its data has been lost by the defendant, the defendant 7 O.S. No.2464/2021 had taken a untenable position that it does not have any control of the date once the server details are shared with its clients. The defendant further stated that it has suspended its services to the plaintiff and that it does not have responsibility of maintaining the plaintiff's data post the discontinuance of its services to the plaintiff. Thereafter on the plaintiff appeal to the defendant for restoring the Aaitra Plat Form with its data the defendant assigned a few technical experts who tried their level best to give access to the misplaced Aaitra Plat Form. But the said attempts went in vain. The plaintiff further requested for a security audit to identity the access to the Aaitra Plat Form but the said request was rejected by the defendant. On 15.09.2020 the plaintiff issued legal notice to the defendant seeking grant of access of Aaitra Plat Form to the plaintiff. In response to the legal notice, the defendant issued an E-mail on 10.10.2020 by stating that the Linux Server as a service to the plaintiff and its services never extended to controlling the plaintiff's data, but was limited to managing the server from the availability perspective. The defendant had deliberately tampered with the 8 O.S. No.2464/2021 hosting of Aaitra Plat Form by changing password and other access details so as to coerce the plaintiff to pay their dues. The plaintiffs Aaitra platform is the intellectual property of the plaintiff critical to the functioning of the business of the plaintiff. The plaintiff has invested substantial sum of money in developing its Aaitra Platform. The defendant violated the rights of the plaintiff to use its intellectual property. The actions of defendants is not violation of Section 43 of the Information and Technology Act, 2000 which envisages that a corporate which is negligent in maintaining and implementing reasonable security practices and procedures possessing, when dealing or handling any sensitive personal data or information in a computer resource that the corporate owns and controls or operates and consequently causing wrongful loss or wrongful gain would be held liable to pay damages by way of compensation to the person so affected. The defendant has not provided any assistance in recovering the date associated with the Aaitra Plat Form. The defendant has stated that it could not be held liable for the possible loss of data associated with the plaintiff, since its services never 9 O.S. No.2464/2021 extended to controlling the plaintiff's data but was limited to managing the server from the availability perspective. The conduct of the defendant is malicious, illegal, malafide and ought to be deprecated in the strictest possible terms. Hence, prays to decree the suit as prays for.
3. After service of suit summons the defendant appeared through its counsel and filed written statement.
4. The sum and substance of the written statement filed by the defendant is as under;
The suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in lemine. It is very well known to the plaintiff that there will be quarterly charges towards the maintenance of server. It is very well informed to the plaintiff that there will be quarterly charges towards the maintenance of the server and the true fact is that plaintiff has paid Rs.5,000/- as per 10 O.S. No.2464/2021 invoice. The plaintiff is a habitual in payment defaults and last payments as such the plaintiff was supposed to make the payment in advance to start with the work but has delayed the first payment itself for three months and cleared on 04.03.2020 of which the plaintiff was suppose to have paid on 18.12.2019 and much prior to the imposing of Covid-19 lock-down in the country. As per the payment terms under the invoice for services payments should always be made 100% in advance to get the services for the said period of time. As a gesture the defendant has provided the service for the period from 12.02.2020 to 11.05.2020 hoping that the plaintiff can run the business but the plaintiff rather considering the good gesture of the business instead of making the payment as per the invoice raised, plaintiff choose to not pay and plaintiff has not made full payment for the period from 12.02.2020 to 11.05.2020 service period. After 12.05.2020 on-wards no service was in progress as the payments were not made by plaintiff for the period of 12.02.2020 to 11.05.2020. The plaintiff made 50% of the payment only on 10.07.2020 and remaining 50% by 31.07.2020 which the 11 O.S. No.2464/2021 plaintiff was due to pay to the defendant. The defendant has never committed any access to the provided with 50% of the payment, rather plaintiff has made the payment after several reminders and email communications for [payments. It was their domain DNS issue which they will only have the access and not the defendant. Firstly domain DNS will not have any control of the defendant. Further, plaintiff have even accepted the true fact in their email communication stating that domain DNS as no any control of the defendant. The plaintiffs have full admin access of their server and defendant is not responsible on what resides in their server and what is the date there in. But it is made clear that the defendant is providing just hosting services on the server. The plaintiff was offered with the back - up of whatever was available with the defendant in their purview but plaintiff has not taken any action for recovery from back up offered by the defendant. Thus there is no fault on the part of the defendant and the statement of plaintiff is false. The services were subscribed till 11.05.2020. Subsequently as the services were not subscribed by making the payment of charges 12 O.S. No.2464/2021 for hosting in the server, thus there is no fault on the part of defendant. The defendant has done attempts twice to provide the recovered data from their server but plaintiff has not come forward to take up the same.
Further, services offered by the defendant were only pre-paid services wherein the plaintiffs have to make 100% advance payment to avail the services and even after more than 25 Emails reminders and intimations were sent regarding the services, plaintiff has failed to take any action. Thus, the defendant ought to stop the services. They were only providing the hosting services on their servers and beyond this no Domain DNS issue will be within the control of plaintiff and defendant cannot have access to the same.
Further, that the plaintiff director was utilizing the services of the defendant for his another company for the past 2-3 years and they were very much satisfied with the defendants services and thus the plaintiff's company wanted the services from defendant and 13 O.S. No.2464/2021 approached the defendant seeking for the said services to the plaintiff's company and when the plaintiff has approached the defendant, the defendant agreed to provide the services on prepaid basis wherein the plaintiffs have to pay 100% advance amount to avail the services for the said period of time and both parties have mutually and orally agreed to pay the services on pre paid basis. All the services are always quarterly in advance as such proforma invoice (Rs.35,400/-) was raised and sent to them on 12.11.2019 for three months of services valid till 11.02.2020. Payment terms and conditions are clearly mentioned in the proforma raised by the defendant. But plaintiff defaulted the payment and made partial payment of (Rs.16,000/-) on 18.11.2019. Later on the defendant has sent reminders by Email but still then the plaintiff did not make the payment even after completion of services. After lot of follow ups, the plaintiff made the balance payment of Rs.19,400/- after expiry of services on 04.03.2020. The defendant has continued the services on their request and raised proforma invoice of Rs.35,400/- for three moths from 12.02.2020 to 11.05.2020 with clear instruction of 100% 14 O.S. No.2464/2021 advance payment. Again plaintiff failed to make the payment for 3 months, they made the part payment of Rs.16,372/- on 20.08.2020. At last the defendant has sent the Email communication and phone communication in respect of services to be provided and the plaintiff has not given proper response neither paid the balance over due amount of the services which were availed by the plaintiff for the second quarterly period and is over due till today. As such the plaintiff is liable to pay the amount of Rs.19,028/- with interest for the delayed payment of availing prepaid services. Thus the defendants were obliged to discontinue the services due to the default of plaintiff. There was no enforceable contract entered into between the parties to seek any rights or protection on any issues as regards the services being provided and taken by both the parties together. There was a oral discussion and on the basis of oral discussions the services were being provided by defendant for which plaintiffs have agreed completely. The suit is not maintainable as the parties are not properly arrayed in the suit. The plaintiff and defendant are the parties working through the Registered Company. 15
O.S. No.2464/2021 Any organization or company should be represented by the representatives wherein the present case plaintiff and defendant are the companies but not made as parties through the representatives. Thus, the suit is not maintainable and hence prays to dismiss the suit with costs.
5. On the above pleadings the following issues were framed;
1. Whether Plaintiff proves that the termi-
nation of its service by the defendant is not as per law?
2. Whether Plaintiff proves that defendant is duty bound to maintain / handle and safeguard the data / information of plaintiff in its backup servers post the discontinuance of its service to the plaintiff?
3. Whether the Plaintiff proves that its Aaitra Platform and its data has been misplaced due to malafide tampering and actions of the defendant?
16
O.S. No.2464/2021
4. Whether the defendant proves that it was obliged to discontinue the service due to the default of plaintiff?
5. Whether the defendant proves that the suit is not maintainable as the proper parties are not arrayed?
6. What Order or Decree?
6. In order to prove the case of the plaintiff, one Soumitra Das, Director and authorized presentative of plaintiff company examined as PW-1 and got marked Ex.P.1 to Ex.P.24 documents and closes its side evidence. On the other hand the CEO of the defendant company examined as DW-1 and produced & got marked three documents at Ex.D.1 to Ex.D.3. (Ex.D2 in nos. 54).
7. Heard arguments & perused the materials placed on record.
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O.S. No.2464/2021
8. My findings to the above issues are as under:
ISSUE NO.1 : In the negative
ISSUE NO.2 : In the negative
ISSUE NO.3 : In the negative
ISSUE NO.4 : As affirmative
ISSUE NO.5 : In the negative
ISSUE NO.6 : As per final order, for the following;
REASONS
9. Issue No.5:- The learned Advocate for the defendant contended that the suit is not maintainable as the parties are not properly arrayed in the suit. The plaintiff and defendant are the parties working through the Registered Company. Any organization or company, should be represented by the representative wherein the present case the plaintiff and defendant are the companies, but not made as parties through representatives. As such the suit is not maintainable which was denied by the plaintiff. 18
O.S. No.2464/2021 It is pertinent to note that it is not in dispute between the parties that plaintiff and defendant are independent companies. The plaintiff has produced Ex.P.1 which is the proceedings of plaintiff company wherein one Soumitra Das who is said to be the Director of the company is authorized to prosecute the matter and at the same time, the DW-1 who is said to be the CEO of defendant company examined himself before the Court as DW-1 and both are representatives of their respective companies. As such the contention of the plaintiff hold no water. Hence, I answer issue No.5 in the negative.
10. ISSUE NO.1 TO 4:- In order to avoid repetition of facts issue No.1 to 4 have been taken for common discussion. It is the specific case of the plaintiff that the plaintiff is a Start Up Private Limited Company that was incorporated in December 2016 offering automated services in the filed of Employee Recruitment & Human Resource Management. The defendant is an enterprise providing a cloud based storage and computing services. Pursuant to the mail 19 O.S. No.2464/2021 dated 12.11.2019 by the plaintiff to the defendant, the plaintiff shifted its data and applications to the Microsoft Cloud Azure Platform operated by the defendant. The plaintiff migrated its web based and android applications, its website www.aaitra.com, database files and sources code (collectively referred to as Aaitra Plat Form) along with the associated data form the Amazon Web Services Server to the Defendants server in November 2019. The defendant also sent the E-mail dated 29.11.2019 confirming the server details to the plaintiff. Therefore the plaintiff successfully migrated its web based and android applications,its website www.aaitra.com, data base files and Source Code which is intrinsically connected to the functioning of the plaintiff's business from the servers of Amazon wen services to the defendants server. The successful migration to the defendants server was confirmed through an email dated 22.11.2019 wherein there was a successful testing of the plaintiff's Aaitra Platform on the defendants servers. A one time migration charges of Rs.35,400/- was also paid by the plaintiff to the defendant for migrating its Aaitra Plat Form to the defendants server. 20
O.S. No.2464/2021 Owing to the lock-down imposed all over the country on account of Covid-19 in March 2020 and due to other business factors there was a significant drop in the revenues of the plaintiff as its clients did not pay their dues. Therefore, the plaintiff sought additional time to clear the dues owned to the defendant on account of the quarterly services rental charges which was accepted by the defendant. In June 2020 the plaintiff tried to access its data on the defendants servers and to its utter shock and disbelief, the plaintiff realized that it could not access the Aaitra Plat Form located on the defendants servers. The defendant had wrongly blocked access to the plaintiff's Aaitra Plat Form, despite agreeing to the plaintiff request for grant of additional time in order to clear the dues owed to the defendant. Therefore, the plaintiff addressed a mail dated 14.07.2020 to the defendant requesting access to its servers and also stated that it was ready to make installment payments of the outstanding dues to the defendant. However, the defendant in a malafide manner rejected the request to the plaintiff. Consequently, the plaintiffs business came to a halt as it was not able to access Aaitra Plat Form along with the 21 O.S. No.2464/2021 website thereby suffering enormous amount of financial and reputation loss and it is also lost several investment options. Subsequently the defendant started threatening the plaintiff that they would delete the plaintiffs Aaitra Plat Form and after several pleas by the plaintiff the defendant agreed to grant plaintiff access to its servers on payment of 50% of the outstanding payment by the plaintiff. On 18.07.2020 the plaintiff paid 50% of the outstanding dues and requested the defendant to grant it access to the defendants servers for the purposes of testing the Aaitra Platform and getting it ready for restarting their business operations. The defendant through mail dated 20.07.2020 acknowledged receipts of payment. The plaintiff of payment of 50% of the outstanding payment was granted access to the defendants servers. When the plaintiff tried to access the services on the relevant IP Address assigned to Aaitra Plat Form, the plaintiff discovered that its Aaitra Plat Form along with the associated date was completely blank and apprehended that its data had been misplaced due to the malafide tampering and actions of the defendant. The plaintiff addressed a 22 O.S. No.2464/2021 mail on 21.08.2020 to the defendant seeking immediate access to its Aaitra Plat Form. In response to the mail dated 21.08.2020 the plaintiff issued an untenable response stating that the issue was related to domain DNS and that if there were no records, the plaintiff could not access the web site and the application.
Further, thereafter the plaintiff addressed mails to the defendants that its web based servers were completely blank and stated that its data has been lost by the defendant, the defendant had taken a untenable position that it does not have any control of the date once the server details are shared with its clients. The defendant further stated that it has suspended its services to the plaintiff and that it does not have responsibility of maintaining the plaintiff's data post the discontinuance of its services to the plaintiff. Thereafter on the plaintiff appeal to the defendant for restoring the Aaitra Plat Form with its data the defendant assigned a few technical experts who tried their level best to give access to the misplaced Aaitra Plat Form. But the said attempts went in vain. The plaintiff further requested for a security audit to identity the access to the 23 O.S. No.2464/2021 Aaitra Plat Form but the said request was rejected by the defendant. On 15.09.2020 the plaintiff issued legal notice to the defendant seeking grant of access of Aaitra Plat Form to the plaintiff. In response to the legal notice, the defendant issued an E-mail on 10.10.2020 by stating that the Linux Server as a service to the plaintiff and its services never extended to controlling the plaintiff's data, but was limited to managing the server from the availability perspective. The defendant had deliberately tampered with the hosting of Aaitra Plat Form by changing password and other access details so as to coerce the plaintiff to pay their dues. The plaintiffs Aaitra platform is the intellectual property of the plaintiff critical to the functioning of the business of the plaintiff. The plaintiff has invested substantial sum of money in developing its Aaitra Platform. The defendant violated the rights of the plaintiff to use its intellectual property. The actions of defendants is not violation of Section 43 of the Information and Technology Act, 2000 which envisages that a corporate which is negligent in maintaining and implementing reasonable security practices and procedures possessing, when 24 O.S. No.2464/2021 dealing or handling any sensitive personal data or information in a computer resource that the corporate owns and controls or operates and consequently causing wrongful loss or wrongful gain would be held liable to pay damages by way of compensation to the person so affected. The defendant has not provided any assistance in recovering the date associated with the Aaitra Plat Form. The defendant has stated that it could not be held liable for the possible loss of data associated with the plaintiff, since its services never extended to controlling the plaintiff's data but was limited to managing the server from the availability perspective. The conduct of the defendant is malicious, illegal, malafide and ought to be deprecated in the strictest possible terms.
11. On the contrary, it is the contention of the defendant that it is very well known to the plaintiff that there will be quarterly charges towards the maintenance of server. It is very well informed to the plaintiff that there will be quarterly charges towards the maintenance of the server and the true fact is that plaintiff has paid 25 O.S. No.2464/2021 Rs.5,000/- as per invoice. The plaintiff is a habitual in payment defaults and last payments as such the plaintiff was supposed to make the payment in advance to start with the work but has delayed the first payment itself for three months and cleared on 04.03.2020 of which the plaintiff was suppose to have paid on 18.12.2019 and much prior to the imposing of Covid-19 lock-down in the country. As per the payment terms under the invoice for services payments should always be made 100% in advance to get the services for the said period of time. As a gesture the defendant has provided the service for the period from 12.02.2020 to 11.05.2020 hoping that the plaintiff can run the business but the plaintiff rather considering the good gesture of the business instead of making the payment as per the invoice raised, plaintiff choose to not pay and plaintiff has not made full payment for the period from 12.02.2020 to 11.05.2020 service period. After 12.05.2020 on-wards no service was in progress as the payments were not made by plaintiff for the period of 12.02.2020 to 11.05.2020. The plaintiff made 50% of the payment only on 10.07.2020 and remaining 50% by 31.07.2020 which the 26 O.S. No.2464/2021 plaintiff was due to pay to the defendant. The defendant has never committed any access to the provided with 50% of the payment, rather plaintiff has made the payment after several reminders and email communications for payments. It was their domain DNS issue which they will only have the access and not the defendant. Firstly domain DNS will not have any control of the defendant. Further, plaintiff have even accepted the true fact in their email communication stating that domain DNS as no any control of the defendant. The plaintiffs have full admin access of their server and defendant is not responsible on what resides in their server and what is the date there in. But it is made clear that the defendant is providing just hosting services on the server. The plaintiff was offered with the back - up of whatever was available with the defendant in their purview but plaintiff has not taken any action for recovery from back up offered by the defendant. Thus there is no fault on the part of the defendant and the statement of plaintiff is false. The services were subscribed till 11.05.2020. Subsequently as the services were not subscribed by making the payment of charges 27 O.S. No.2464/2021 for hosting in the server, thus there is no fault on the part of defendant. The defendant has done attempts twice to provide the recovered data from their server but plaintiff has not come forward to take up the same.
Further, services offered by the defendant were only pre-paid services wherein the plaintiffs have to make 100% advance payment to avail the services and even after more than 25 Emails reminders and intimations were sent regarding the services, plaintiff has failed to take any action. Thus, the defendant ought to stop the services. They were only providing the hosting services on their servers and beyond this no Domain DNS issue will be within the control of plaintiff and defendant cannot have access to the same.
Further, that the plaintiff director was utilizing the services of the defendant for his another company for the past 2-3 years and they were very much satisfied with the defendants services and thus the plaintiff's company wanted the services from defendant and approached the defendant seeking for the said services to the plaintiff's company and when the plaintiff has approached the 28 O.S. No.2464/2021 defendant, the defendant agreed to provide the services on prepaid basis wherein the plaintiffs have to pay 100% advance amount to avail the services for the said period of time and both parties have mutually and orally agreed to pay the services on pre paid basis. All the services are always quarterly in advance as such proforma invoice (Rs.35,400/-) was raised and sent to them on 12.11.2019 for three months of services valid till 11.02.2020. Payment terms and conditions are clearly mentioned in the proforma raised by the defendant. But plaintiff defaulted the payment and made partial payment of (Rs.16,000/-) on 18.11.2019. Later on the defendant has sent reminders by Email but still then the plaintiff did not make the payment even after completion of services. After lot of follow ups, the plaintiff made the balance payment of Rs.19,400/- after expiry of services on 04.03.2020. The defendant has continued the services on their request and raised proforma invoice of Rs.35,400/- for three moths from 12.02.2020 to 11.05.2020 with clear instruction of 100% advance payment. Again plaintiff ailed to make the payment for 3 months, they made the part payment of Rs.16,372/- on 20.08.2020. 29
O.S. No.2464/2021 Atlast the defendant has sent the Email communication and phone communication in respect of services to be provided and the plaintiff has not given proper response neither paid the balance over due amount of the services which were availed by the plaintiff for the second quarterly period and is over due till today. As such the plaintiff is liable to pay the amount of Rs.19,028/- with interest for the delayed payment of availing prepaid services. Thus the defendants were obliged to discontinue the services due to the default of plaintiff. Thee was no enforceable contract entered into between the parties to seek any rights or protection on any issues as regards the services being provided and taken by both the parties together. There was a oral discussion and on the basis of oral discussions the services were being provided by defendant for which plaintiffs have agreed completely.
12. In order to substantiate the contention of the plaintiff, one Soumitra Das who is the Director of the plaintiff company filed his examination-in-chief on oath as PW-1 and reiterated the averments 30 O.S. No.2464/2021 of the plaint and also produced and got marked Ex.P.1 to Ex.P.24 documents. Ex.P.1 is the proceedings of the plaintiff company wherein the plaintiff company authorized PW-1 to prosecute the matter. Ex.P.2 is the broacher, Ex.P.3 is the documents pertaining to Aaithra Plat Form, Ex.P.4 is the E-Mail dated 12.11.2019, Ex.P.5 is the E-Mail dated 29.1.2019, Ex.P.6 is the E-Mail dated 12.11.2019, Ex.P.7 is the invoice dated 12.11.2019, Ex.P.8 is the E-mail dated 23.03.2020, Ex.P.9 is the E-Mail dated 14.07.2020, Ex.P.10 is the E- Mail dated 16.07.2020, Ex.P.11 is the E-Mail dated 18.07.2020, Ex.P.12 is the documents pertaining to Aaithra Plat Form, Ex.P.13 is the E-Mail dated 21.08.2020, Ex.P.14 is the E-Mail dt.21.08.2020, Ex.P.15 is the legal notice dated 15.09.2020, Ex.P.16 is the postal receipt, Ex.P.17 is the E-Mail dated 10.10.2020, Ex.P.18 to 21 are the invoices dated 29.06.2017 (4 in nos.), Ex.P.22 is the E-Mails dated 22.03.2021 and 19.10.2020, Ex.P.23 is the certificate under Section 65(B) of Indian Evidence Act, Ex.P.24 is the Board Meeting Minutes dated 25.03.2021.
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13. On the other hand the CEO of defendant company filed his examination-in-chief on oath as DW-1 and reiterated the averments of written statement. He has produced and got marked documents at Ex.D1 to Ex.D3 documents. Ex.D.1 - Extract of Board Resolution for Authorization to represent the company the court for legal proceedings, Ex.D.2 is the copy of invoice dated 12.11.2019 which reveals that terms of payment is 100% advance and E-mails is Nos.54 with respect to communication between the plaintiff and defendant. Ex.D.3 is the certificate under Section 65(B) of Indian Evidence Act.
14. It is not in dispute between the parties that plaintiff has migrated its web based android application and data base files i.e., Aaithra Plat Form from servers on Amazon Web Services to defendant server. This is one aspect.
15. It is the specific case of plaintiff that the defendant has not continued its services and deliberately tampered with the hosting of 32 O.S. No.2464/2021 Aaithra Plat Form by changing password and other access details. The defendant is duty bound to maintain the data in its back up servers and thus unilateral action of withholding or misplacing of plaintiff data is abuse of law. The plaintiff could only have terminated the services of defendant through legal notice which was not property followed by the defendant.
16. On the other hand, the learned Advocate for defendant contended that the defendant is a server provider and it is on prepaid basis. Once prepaid period is completed, the data will be automatically get deleted. The Plaintiff has not paid the quarterly charges inspite of requests as such the defendant is not responsible for any loss of data. The defendant have no control over the servers. The key work pass word are with plaintiff only and it is not in the domain of defendant.
17. It is the specific case of the plaintiff that the services provider works on post paid basis. It is significant to note that the 33 O.S. No.2464/2021 plaintiff has not placed any agreement before the Court to show that the terms of the plaintiff and defendant is on post paid basis. This is one aspect.
18. Further the plaintiff who has approached the Court has to establish before the Court by placing any material before the Court that the defendant has Domain to delete the data and the plaintiff failed to establish that the defendant had control regarding the deletion of data.
19. Further as already discussed above & on perusal of E-mails produced by both the parties it reveals that inspite of several requests by the defendant, the plaintiff has not paid the up to date charges and even inspite of mails by the defendant stating that their services will end if the plaintiff does not pay the balance amount, the plaintiff has not paid the balance dues to the defendant in proper time. It is the plaintiff who has appeared before the Court has to prove that he was paying his charges regularly and inspite of the 34 O.S. No.2464/2021 same defendant has not provided services and intentionally deleted the data. But the plaintiff's mails produced by the plaintiff itself reveals that he was defaulter in payment of amount which is due to the defendant. Moreover the plaintiff has not established before the Court that the defendant intentionally deleted the data of the plaintiff and it has also failed to establish that the defendant had domain over the plaintiff data and he destroyed the same. As such as there is no written or valid agreement between the plaintiff and defendant, the plaintiff failed to prove that the termination of services is not as per law and also the plaintiff failed to prove that the defendant is duty bound to maintain the data of plaintiff in back up services after discontinuation of its services to the plaintiff and also failed to establish that the data has been misplaced due to malafied tampering actions of the defendant. As such the defendant has oblique to discontinue the services due to the default of plaintiff. Hence, I answer issue No.1, 2 & 3 in the negative and issue No.4 as affirmative.
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20. ISSUE NO.6:- In view of my finding on above issue No.1 2, 3, & 5 in the negative & issue No.4 as affirmative, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed. In the circumstances of the case there is no order as to costs.
Draw Decree accordingly.
(Dictated to the stenographer directly on computer, typed by him, revised by me and after corrections pronounced in the open court on this the 22nd day of October, 2024.) (VIJETH.V) XXXIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the plaintiff:
PW.1: Soumitra Das
36
O.S. No.2464/2021
List of documents exhibited on behalf of the plaintiff:
Ex.P.1 Proceedings of the plaintiff
company
Ex.P.2 Broacher
Ex.P.3 Documents pertaining to Aaithra
Plat Form
Ex.P.4 E-Mail dated 12.11.2019
Ex.P.5 E-Mail dated 29.1.2019
Ex.P6 E-Mail dated 12.11.2019
Ex.P7 invoice dated 12.11.2019
Ex.P8 E-mail dated 23.03.2020
Ex.P.9 E-Mail dated 14.07.2020
Ex.P.10 E-Mail dated 16.07.2020
Ex.P.11 E-Mail dated 18.07.2020
Ex.P.12 Documents pertaining to Aaithra
Plat Form
Ex.P.13 E-Mail dated 21.08.2020
Ex.P.14 E-Mail dt.21.08.2020
Ex.P.15 Legal notice dated 15.09.2020s
Ex.P.16 Postal Receipt
Ex.P.17 E-Mail dated 10.10.2020
Ex.P.18 to 21 Invoices dated 29.06.2017 (4 in
nos.)
Ex.P.22 E-Mails dated 22.03.2021 and
19.10.2020
37
O.S. No.2464/2021
Ex.P.23 Certificate under Section 65(B) of
Indian Evidence Act
Ex.P.24 Board Meeting Minutes dated
25.03.2021
List of witnesses examined on behalf of the defendants:
DW-1 Manojkumar List of documents exhibited on behalf of the defendants:
Ex.D1 Extract of Board Resolution for
Authorization to represent the
company the court for legal
proceedings.
Ex.D2 Copy of invoice dated 12.11.2019
which reveals that terms of payment is
100% advance and E-mails is Nos.54
with respect to communication
between the plaintiff and defendant
Ex.D3 Certificate under Section 65(B) of
Indian Evidence Act.
(VIJETH.V)
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
Digitally signed
VIJETH by VIJETH V
Date:
V 2024.10.26
15:56:25 +0530
38
O.S. No.2464/2021
22.10.2024
Pl-MD
Df-MS
JUDGMENT PRONOUNCED IN OPEN COURT
VIDE SEPARATE TYPED ORDER
The suit of the plaintiff is hereby
dismissed.
In the circumstances of the case there is
no order as to costs.
Draw Decree accordingly.
(VIJETH.V)
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.