Delhi District Court
Gill India Concepts Pvt. Ltd vs Mr. Ajith Kumar Lr on 3 December, 2018
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
Arbitration A (Comm.)No. 38/18
Gill India Concepts Pvt. Ltd.
505, 5th Floor, Sheetla House
Building no. 73-74, Nehru Place,
New Delhi-110019 ...........Petitioner
Versus
1 Mr. Ajith Kumar LR
BW Business World, Express Building,
Bahadur Shah Zafar Marg, Vikram Nagar
New Delhi, Delhi-110002
Also at:
D-55/F-7, Dilshad Colony,
Delhi-110095 ........Respondent no.1
2 The Director/Owner/Proprietor
BW Business World, Express Building,
Bahadur Shah Zafar Marg, Vikram Nagar
New Delhi, Delhi-110002 ........Respondent no.2
3. BW Business World,
Express Building,
Bahadur Shah Zafar Marg, Vikram Nagar
New Delhi, Delhi-110002 .........Respondent no.3
Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 1 of 23
ORDER ON PETITION UNDER SECTOIN 9 OF THE ARBITRATION
AND CONCILIATION ACT, 1996 FOR INTERIM MEASURES
This is a petition under Section 9 of Arbitration and Conciliation
Act for interim measures filed by Gill India Concepts Pvt. Ltd. Vs Ajith
Kumar & Ors. There are three respondents. 1. Mr. Ajith Kumar, LR, no.2 is
Director/owner/proprietor of BW Business World Express Building, Bhahdur
Shah Zafar Mark, Vikram Nagar, New Delhi-02, 3. BW Business World,
Express Building, Bhahdur Shah Zafar Mark, Vikram Nagar, New Delhi-02.
Facts stated in the petition are as follows:
1 By way of this petition, petitioner seeks interim relief to restrain respondent no. 1 to 3 from using or divulging all/any proprietary, confidential information and business strategies of the petitioner to the competitors of the petitioner. Petitioner further seeks to prohibit respondent no. 1 to 3 from surreptitiously and illegally soliciting the petitioner's client with the aim of causing wrongful cause to the petitioner, however, respondent no.1 in complete disregard to the provisions of agreement (employment agreement) entered between petitioner and respondent no.1 on 03.10.2013 has started engaging in such unlawful activities with the intention to cause grave prejudice to the petitioner. Therefore, petitioner is left with no other option but to approach this court for urgent relief(s). The facts leading upto the petition are as follows:-
Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 2 of 232 Petitioner is a leading publishing house of travel and leisure magazines, travel manuals and coffee table books of international standard which was established in 1997 and since then has been one of India's fastest growing publishing house. Petitioner works in collaboration with its two sister concern i.e. integrated communication and marketing system ltd and optimice events pvt. Ltd. Registered office of petitioner is at 505, 5 th floor, Sheetla house, building no. 73-74, Nehru Place, New Delhi-19. Respondent no.1 is an ex-employee of the petitioner. He is currently working as operational controller-BW Communities with the petitioner's competitor i.e. respondent no.3 which is also a publishing house and organizing seminars, award functions and events very similar to the petitioner which is in contravention of the appointment letter itself. Respondent no.2 is Director of respondent no.3. Petitioner also organizes one of India's premier MICE Mart called as MICE travel mart and luxury and leisure travel mart where the petitioner provides a unique platform for integrating the buyers and sellers of MICE by unique concept of reverse market place which allows buyers and sellers to interact with each other on a common platform. This not only helps the buyers in developing their knowledge on products and service but also supports them in imparting current market updates. The petitioner owns today's traveller magazine which is India's one and only consumer travel magazine to bag the pacific Asia Travel Association Gold Award four times, Around May of 2013, respondent no.1 approached petitioner for job Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 3 of 23 opportunities. Accordingly, to help respondent no.1, he was offered a respectable position with the petitioner company. Till the date of his relieving i.e. 17.09.2018, respondent no.1 was actively engaged in all the ventures of the petitioner including its sister concerns namely integrating communication and market systems and optimice events pvt. Ltd. Respondent no.1, at the time of joining the petitioner had no prior knowledge or experience about this travel and tourism sector and the kind of work petitioner was involved. Petitioner invested time and money in respondent no.1 and trained him for requisite skills. By virtue of his designation with the petitioner, respondent got an opportunity to interact and connect with some of India's most prominent brands in the country, tourism, hospitality, aviation, cruises, car rental companies, representation companies, foreign tourism boards, Indian State Tourism Boards, corporate companies and MICE Industry travel. During the course of his employment with the petitioner, respondent no.1 had access to all the confidential and proprietary information and trade secrets of the petitioner, third parties and its customers. During his tenure, respondent had access to all relevant details with respect to the mailing list of today's traveler Coffee table book, today's traveler magazine and today's traveller awards. Respondent no.1 also closely co-ordinated with accounts department in making invoices for clients, made the follow up payments and maintained invoices for both the petitioner and its sister concerns. Since respondent no.1 was making the invoices, he also had access to the information on the amount Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 4 of 23 each client was paying for advertisements, advertorial in publications, sponsorships in events etc. 3 While working for optimice events pvt. Ltd. Respondent no.1 procured information with respect to payments for booth space and raw space, sponsorship in exhibitions and think tanks. Respondent also had access to a list of key decision makers of a company and all existing as well as potential clients with name, designation etc. Respondent also maintained the mailing list for invites of VIP buyers and sellers of MICE travel mart. Respondent maintained all above data basis on his own desktop. In order to protect the confidentiality and secrecy associated with petitioner's trade and sphere of work which involved innovativeness and high commercial significance, petitioner decided to enter into employment agreement with respondent no.1. on 03.10.2013, petitioner entered into an employment agreement with respondent no.1 in which the respondent was re-appointed as General Manager-Administration of petitioner. Certain essential clauses of employment agreement for protection of vital proprietary information of petitioner company are reproduced here:-
Clause 6.3: "Upon Termination, you will immediately hand over the Company all property belonging to the Company and or relating to its business, including but not limited to any Laptop, Mobile instrument including SIM Card, Brochures Specifications Formulae, books, Documents, Market Data, cost data, Literature, Drawings, Effects or Records etc and you Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 5 of 23 undertake not to make copies of the same".
Clause 14.1: In the course of your employment with the company, you will have access to certain confidential and proprietary information of the Company/parent company/subsidiaries/joint ventures/Associates, etc and their activities. You, will not at any time without the written consent of an authorized signatory of the Company, disclose, divulge or make public except on legal obligations, any information related with Company's affairs or administration or research carried out whether the same may be confided to you or become known to you in the course of your employment or otherwise.
Clause 14.4: You shall not disclose either during your employment or afterwards, by word of mouth or otherwise, any
information/detail/particulars/of a confidential nature received by you during the course of your employment with the Company including without limitation any information, data, records whether in physical or electronic from pertaining to any technical, scientific and administrative, policy matter including business methods, business strategy, business transactions, proposals, business policies, internal policies and code of conduct for employees, budget, books of accounts, financial details, pay packages/profile of employees, any information, data, records and books in relation to existing clients, investors partners, joint ventures, subsidiaries, shareholders and affiliates of the Company and potential clients, investors, joint ventures and Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 6 of 23 partners of the company including any details of the representatives, contact nos. etc. any information, data, records, software etc. any information, data, records, and other proprietary information owned or developed by the company and data, records, software etc. to which any intellectual property is assigned or assignable and/or any other matter concerning the management or any of its subsidiaries etc. and/or any other matter/information/knowledge and/or skill that you may come to know or acquire during your employment with the management/its subsidiaries/any other concern where you may be posted during your employment. Clause 15- Non compete: The Employee shall act as a full time employee of the company during the subsistence of this Agreement. The employee shall not, during the term of this Agreement, engage in any business, employment, consultancy, provision of services or any other activity, whether directly or indirectly, which is similar to the business carried out by the company. The employee shall not, after the termination of this Agreement join any rival business concern or compete with the Company in any matter, whether directly or indirectly, for a period of sixty months. Clause16- Non Solicitation: The Employee shall not during the term of this Agreement and for a period of five years thereafter, solicit, accept employment of, or render professional services to, any person or organization that is or was an existing or potential client of the company. Further, the Employee shall not engage or solicit, whether directly or Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 7 of 23 through any organization or entity, the services of any employee, agent, sub- contractor, vendor, or other service provider who is or was at any point in time associated with the Company.
4 Respondent no.1 being a key man in the organization was privy and having access to all confidential and financial information which the others were not privy to. On 18.08.2018, respondent no.1 addressed a resignation letter to petitioner stating personal reasons to discontinue his services with the petitioner. Contents of resignation letter are reproduced here "Due to some personal reasons, I am not in a position to continue my services at Gill India Concepts Pvt. Ltd. Please treat this as my formal intimation that I would like to move out of Gill India Concepts Pvt. Ltd".
5 In reply to the resignation letter, petitioner addressed a letter dated 17.09.2018 where it stated that the services of respondent no.1 were formally terminated from 17.30 hours on 17.09.2018. Letter dated 17.09.2018 clearly said that the full and final dues of respondent no.1 have been settled through cheque no. 129077 of Rs.29,945/- and cheque no. 129706 of Rs.20,240/- dated 17.09.2018 drawn on ICICI Bank. Respondent no.1 through his letter dated 17.09.2018 acknowledged and accepted that all final dues including salary and other dues from all three companies i.e. the petitioner and sister concerns have been paid to the respondent no.1. Therefore, there is no dispute with respect to full and final payment of the Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 8 of 23 dues of the respondent.
6 After termination of the employment, respondent no.1 bound by the terms of the employment contract. Respondent assured and undertook and was also bound by the said agreement more specifically Clause 15 & 16 from joining any rival concerns or compete with the company in any manner whether directly or indirectly for a period of 60 months. Respondent no.1 also undertook that he will not during the term of his agreement and for a period of five years thereafter, solicit, accept employment or render any professional services to any person or organization that was competing or any potential client of the company with directly or through organization or entity the services of any employee etc. who is or shall at any point of time associate with the petitioner company. However, to the surprise of the petitioner and in breach of the terms of contract, respondent no.1 joined respondent no.3 which was also a competitor, petitioner learned of the same on 16.10.2018 when petitioner received a mail from respondent no.3 inviting nominees from co-operate MICE buyer hotels travel companies and tourism boards. Petitioner was shocked to notice the name of respondent no.1 as RSVP in the same e-mail. This is a blatant breach of the terms and undertakings given by respondent no.1. It is clear that respondent no.1 has connived with respondent no. 2 & 3 to unauthorizedly take away privileged and confidential information with a view to cause wrongful gain to itself and wrongful loss to the petitioner. Apprehensions of the petitioner were fortified Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 9 of 23 once again when it came to its knowledge on 26.10.2018 that respondent no.1 was constantly engaging in soliciting influential clients of the petitioner for example, a client with a name Go Turkey. Respondent no.2 in connivance with respondent no.1 used confidential information of the petitioner to solicit clients for organizing hotelier conclave Awards 2-18. It was even then that the petitioner become aware that respondent no.1 had made an incorrect assertion in his resignation letter and gained employment under respondent no.3 which was engaged in the business of a similar nature. These activities are in contravention of the terms of the appointment letter itself which survives termination. Petitioner has filed a document to show that Go Turkey was infact petitioner's client. Respondent no.1 acted in contravention of its undertaking given in the employment agreement dated 03.10.2013. By perusal of website of business world (current employment of the respondent), respondent no.3 has not only acted in contravention of the agreement but has used several innovative and business ideas and tactics of the petitioner to revamp content of the website of business world thereby flouting of business ethics and abuse of relations with the petitioner. Respondent no. 2 & 3 have acted in concert to obtain all confidential documents and information belonging to petitioner to advance its business and solicit the clients of the petitioner. The dishonest manner with which the respondent seek to cheat the petitioner is writ large from the mail dated 16.10.2018 addressed to the petitioner by respondent no.3 which clearly shows the involvement of Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 10 of 23 respondent no.1 in the job of similar nature as that of the petitioner company. Confidential and proprietary information of the petitioner is currently being illegally disclosed, divulged and misused by respondent no.1, respondent no. 2 & 3 contrary to the employment agreement dated 03.10.2013 with a view to unlawfully enrich themselves. Such unlawful disclosure of information has caused substantial and irreparable loss and damage to the business, goodwill and reputation of the petitioner. The petitioner believes and has real apprehension that respondents have already been successful or likely to be successful in soliciting most of the petitioner's business and clients. Therefore, if the respondents are not restrained then the petitioner will suffer irreparable damages which cannot be compensated in terms of money. Petitioner will lose all its clients and business trade secrets which will cause great financial hardship and losses to the business of petitioner. Left with no other option, petitioner is compelled to approach this court for urgent relief(s) to protect its business and goodwill. Loss of goodwill and reputation caused to petitioner cannot be quantified in terms of money and the continuing acts and omissions in engaging in competing business is resulting financial loss to the petitioner. Therefore, it is necessary that all the respondents are restrained from disclosing, divulging and misusing the confidential and proprietary information and trade secrets of the petitioner and the customers of the petitioner which respondent no.1 gained during the course of his employment with the petitioner.
Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 11 of 237 It is submitted that the petitioner cannot invoke arbitration under the agreement because of paucity of time but it shall do so immediately within the prescribed period under the agreement. From the abovementioned facts, it is clear that petitioner has a prima facie case against respondent no.1 and there is breach of clause of employment agreement including the most essential non-solicitation and non-compete clause of the agreement by respondent no.1. Balance of convenience also lies in favour of petitioner and against the respondents as petitioner will suffer irreparable loss and injury in case the interim relief of injunction is not granted to restrain the respondents from disclosing sensitive information and soliciting the clients of the petitioner. Petitioner is a pioneer in its business domain and if not restrained the respondents are likely to erode the customer base of the petitioner thereby causing grave losses. Cause of action arose when petitioner received e-mail dated 16.10.2018 when it became aware of the fact that respondent no.1 after resignation subsequently took employment with respondent no.3 which is a competitor of the petitioner. Therefore, respondent no.1 acted in gross breach of the employment agreement dated 03.10.2013 executed with the petitioner. Cause of action arose on all dates when respondents solicited clients belonging to petitioner and used confidential information of the petitioner to illegally enrich itself.
It is therefore prayed that this court be pleased to :-
1. restrain respondent no.1 from joining any other employment, accept Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 12 of 23 employment of, or render professional services to, any person or organization or work existing or potential rival firm, company or entity and if he has joined a rival firm/company or entity then direct the respondent no.1 to tender his resignation in the rival business concern;
2. restrain the respondents, their agents and affiliates from engaging or soliciting, whether directly or through any organization or entity, services of any employee, agent etc. or was at any point of time associated with the petitioner;
3. restrain the respondent no.1 from acting contrary to the terms of the employment agreement dated 03.10.2013, more particularly clause no. 6, 14, 15 and 16;
4. restrain the respondent no.1 from engaging any competitive business etc. whether directly or indirectly which is similar to the business carried out by the company;
5. restrain the respondents etc. from using, disclosing, divulging any confidential or proprietary information in any manner whatsoever;
6. direct respondent no.1 to produce all confidential information received by him during the course of his employment with the petitioner, including but not restricted to details of clients list etc. and return such data to the petitioner to destroy all confidential and proprietary data and provide an undertaking before this court;
7. restrain all respondents, their agents etc. from soliciting the clients Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 13 of 23 of the petitioner with a view to unlawfully enrich themselves to the detriment of the petitioner;
8. restrain the respondents from organizing and soliciting the BW hotelier MICE conclave and awards to be held on 04.12.2018 as the same is based on confidential and trade secrets;
9. cost of the petition or any other order as the Court may deem fit in the interest of justice.
Reply filed by the respondents:
8 It is submitted by all the 3 respondents that the present petition is nothing but an abuse of the process of the court and has been filed merely to harass the respondents. It is submitted that the petitioner has come to this court with unclean hands. It is submitted that the agreement upon which the petitioner is relying is itself not signed by anyone on behalf of the petitioner. Therefore the agreement is not binding upon the respondents. It is further submitted that there is no valid arbitration clause or agreement validly executed between the petitioner and respondent number 1. It is submitted that an arbitration agreement to be valid has to be in writing and signed by both the parties which is not so in the present case.
9 In the Reply, it is argued that the petition deserves dismissal as the relief sought in the same are contrary to established law. Furthermore, the petition under the reply is full of factual inaccuracies, intentionally false Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 14 of 23 statements as also is a clever attempt on the part of the petitioner to arm twist a business competitor which the law by itself prohibits post termination restrictions. A detailed additional affidavit has also been filed today by the respondents.
10 During the course of arguments, counsel for the petitioner submitted that there were withdrawing and waiving off the relief of binding the respondent number 1 with the non-compete clause as it is contrary to law and cannot be enforced. Citation in support of the same is Pepsi foods Ltd and others versus Bharat Coca-Cola Holdings Private Limited and others.
11 It is submitted that the arbitration agreement is unenforceable. The alleged arbitration clause in the employment agreement is not signed by the petitioner itself. As per section 7 of the arbitration and conciliation act, arbitration agreement must be in writing and in the form of a contract. It is imperative that such a contract is signed by both the parties. Respondent number 2 and 3 are not a part of the arbitration agreement allegedly executed between the petitioner and respondent number 1. No direction pursuant to the petition can be passed against respondent number 2 and 3. Petitioner has failed to explain as to how respondent number 2 and 3 are subject to jurisdiction of this court. Arbitration is a private forum of dispute resolution and directions passed therein cannot be with respect to 3 rd parties. Petitioner has not even issued any arbitration notice indicating existence of any dispute Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 15 of 23 or differences between the petitioner and respondent number 1 or any other respondents. Perusal of clause 17 containing arbitration clause specifies that the arbitrator can be appointed by the managing director of the petitioner, here the petitioner has elected to file the present petition under section 9 which is against the spirit of section 9 subsection 3 of the arbitration and conciliation act 1996. Petition under the reply is full of vague allegations because it fails to give any details of the alleged confidential information and trade secrets of the petitioner. Petitioner is well aware that there is no such confidential information or trade secret in the business of the petitioner which can pass the test laid down by judicial precedents including the American Express case. Petitioner has also not claimed that such alleged confidential information was copyrighted as the petitioner is well aware that there is no confidential information per se that the respondent number 1 has taken away or misused. Petitioner has given an example of a website "go turkey" which in itself demonstrates that the information is in public domain/obtainable from public sources with minimal efforts. Respondent number 1 submits that he has not taken away/misused any confidential information or trade secrets of the petitioner. Therefore the relief of injunction cannot be granted. The petitioner has failed to give any evidence or place on record any incident of misuse of any alleged confidential information. Petitioner himself has placed on record the details of similar past events held by respondent number 2 and 3 at pages 10, 56 and 68 respectively. As such the petitioner is cleverly Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 16 of 23 attempting to seek a wrongful injunction against the existing event portraying it as a fresh event. Respondent number 1 admittedly resigned from the petitioner on August 18, 2018 and was relieved from employment on 17 September 2018. Employment of respondent number 1 commenced with the petitioner on October 13, 2013. Even as per the documents filed by petitioner in his petition the event held by respondent number 2 and 3 in January 2018 is much before the joining of respondent number 1 in the employment of respondent number 2 and 3 which was in the month of October 2018. The petitioner itself states that he became aware of the forthcoming event of respondent number 2 and 3 by emails received by them from respondent number 3. This clearly demonstrates that the respondents were issuing the emails about the events in the ordinary course of business and there is nothing to hide or illegal about the proposed event of respondent number 3.
12 The triple test against the petitioner and in favour of the respondents.
1) It is submitted that in view of the mentioned reasons, petitioner has no prima facie case against the respondents.
2) There will be no irreparable loss/injury caused to the petitioner as falsely alleged by the petitioner. Respondent number 3 has been holding such events in the past with full information in the public domain. Respondent number 3 is a reputed publication of India holding several high profile events. Respondent number 3 is a reputed media house. If any of the prayers Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 17 of 23 of the petitioners is granted, irreparable loss and damage will be caused to the respondents more specifically respondent number 3.
3) Balance of convenience is also in favour of the respondents.
Respondents have been holding similar events in the past with full public knowledge from the time much prior to the respondent number 1 joining the employment of respondent number 3. Petitioner is well aware about the events and never raised any objection prior to filing of the present petition. Respondent number 2 and 3 have no privity of contract with the petitioner.
13 The authorisation of the board of directors of the plaintiff as adduced at page number 70 of the petition does not authorise filing of the present petition and therefore the same is not maintainable in this court. Furthermore, the present petition is in the nature of interim relief which cannot withstand itself in the absence of an arbitration proceedings. Authorisation of the board does not authorise commencement/institution of any arbitral proceedings against respondent number 1. Furthermore, the board authorisation does not even refer to respondent number 2 and 3. Hon'ble Delhi High Court in the case of ambiance India Private Limited versus Naveen Jain also dismissed the case of the plaintiff in similar manner. It is therefore prayed for present petition be dismissed with heavy costs.
14 Respondents have filed the following judgments in support of the arguments.
Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 18 of 23 (i) American Express bank Ltd versus Ms Priya Puri
(ii) Wipro Ltd versus Beckman Coulter International
(iii) navigators Logistics Ltd versus Kashif Kureishi and others.
15 Out of all the judgements, the respondents have primarily and heavily relied upon the 3rd judgement of navigators Logistics Ltd. The judgement has been passed by Hon'ble Delhi High Court on 17 September 2018 and is stated to be settled law and compendium on the law of copyright act. It is submitted that the plaintiff in the above-mentioned case of navigators Logistics had a similar claim against the defendants which was dismissed by the Hon'ble High Court of Delhi. In this case also the respondents claimed that they had confidential data, customer database, account information, air ways bills templates, plans and other financial information of the customers which constituted confidential data and information and trade secrets of the plaintiff stored on computers, computer systems, computer networks et cetera of the plaintiff. That the said information, data and other related material is the original artistic and literary works of the plaintiff within the meaning of section 2 subsection C and subsection O of the Copyright act 1957. That the plaintiff is the 1 st owner of the copyright in the said information materials and for the purpose of conducting its day-to-day business activities, plaintiff engages services of various employees. That owing to the sensitive nature of the information to which the employees would become privy, plaintiff has got very stringent Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 19 of 23 legal documentation which it gets signed from all its employees at the time of joining the employment. That the defendant number 1 was employed as customer service executive of the defendants. Clauses of the said agreement have been mentioned in para number 1 of the said judgement. In the above- mentioned judgement, the plaintiff has sought the relief of,
1) permanent injunction restraining the defendants from violating the plaintiff's copyright in its original literary and artistic works and the plaintiff confidential data information and trade secrets resident in the electronic devices of the plaintiff handed over to the defendants during the course of their employment with the plaintiff,
2) permanent injunction restraining the defendants from carrying out any business with the copyright material belonging to the plaintiff,
3) permanent injunction restraining the defendants from creating any 3rd party right in the copyright material of the plaintiff,
4) permanent injunction restraining the defendants from disclosing the confidential information and data of the plaintiff to any other person
5) permanent injunction restraining the defendants number 1 to 8 from competing with the plaintiff for a period of one year
6) mandatory injunction directing the defendants number 1 to 8 to disclose to the court, the use made by them of the copyright material of the plaintiff
7) mandatory injunction directing the above-mentioned defendants to Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 20 of 23 handover the data and other confidential information of the plaintiff to the plaintiff
8) rendition of accounts
9) recovery of rupees one crore 50 lakhs jointly and severally from all the defendants.
16 In the above-mentioned judgement, the Hon'ble High Court also relied upon the judgement of American Express bank Ltd versus Priya Puri cited as 2006 SCC online Delhi 638.
17 The suit of the plaintiff was dismissed by the Hon'ble High Court on various counts. It was held that the non-compete clause was violative and void in view of section 27 of the contract act. Once this clause is void, there can be no injunction or damages in lieu of injunction on the basis thereof. It was further held that the permanent injunction and in the alternative damages claimed on the premise of noncompete clause thus discloses no cause of action and is not required to be put on trial. It was also held that the plaint does not disclose the plaintiff to be entitled to the relief of injunction or damages. Plaint was rejected and suit was dismissed.
18 I have heard arguments from both the sides. I have also perused the record.
19 The case of the petitioner is that petitioner had some confidential information/trade secrets and when respondent number 1 was working as an Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 21 of 23 employee with the petitioner, he had signed an agreement as per which he was precluded from using/misusing every piece of confidential information/proprietary information and trade secrets which came into his possession while working in the employ of the petitioner contrary to the interests of the petitioner. In the present case, petitioner has already waived off his claim to enforce noncompete clause against respondent number 1.
20 After hearing the arguments, this court is inclined to agree with submissions of counsel for the respondents. Petitioners have failed to disclose what was the confidential/proprietary information which they seek to protect and injunct the respondents from using. Petitioners have also failed to prove that the information which they allege to be confidential is in fact confidential and is protected by the intellectual property right or any other law for the time being in force. No trade secrets have been pleaded or alleged by the petitioner. The emails in question which have been shown by the petitioner to have been dispatched by respondent number 2 and 3 to the clients of the petitioner are predated by one year. Admittedly, respondent number 1 joined employment of respondents number 2 and 3 in the month of September/October 2018. In the opinion of the court, petitioner has failed to prove the existence of a prima facie case, balance of convenience and causing of irreparable loss which cannot be compensated in terms of money in his favour against the respondents. Moreover, the court also believes that there is no valid arbitration agreement between the petitioner and respondent number Arb. A (Comm) No. 38/18 Gill India Concepts Pvt. Ltd. Vs Ajith Kumar & Ors Page 22 of 23 1 in view of the fact that the arbitration clause in the agreement is not admittedly signed by the petitioner himself. Therefore the requirements of a valid arbitration agreement have not been fulfilled. Since in the opinion of the court, there exists no arbitration agreement to begin with, the present petition under section 9 of the arbitration and conciliation act 1996 itself is not maintainable.
Accordingly dismissed. File be consigned to record room.
Digitally signed by SUNIL SUNIL BENIWAL
Announced in the open Court on BENIWAL Date: 2018.12.04
16:03:19 +0530
3rd day of December, 2018 (SUNIL BENIWAL)
ADJ-02, Central,THC/Delhi
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