Gujarat High Court
Arun Rambhau Desai S/O Shri Rambhau ... vs Deepak Nitrite Limited on 15 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/CRA/56/2024 ORDER DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 56 of 2024
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ARUN RAMBHAU DESAI S/O SHRI RAMBHAU DESAI
Versus
DEEPAK NITRITE LIMITED
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Appearance:
MR AADITYA KARNAVAT(11777) for the Applicant(s) No. 1
MR. AADIT R SANJANWALA(9918) for the Opponent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 15/02/2024
ORAL ORDER
1. Heard Mr. Aaditya Karnavat, learned advocate appearing for the applicant and Mr. Aadit R. Sanjanwala, learned advocate appearing on caveat for the opponent.
2. The applicant herein is dissatisfied by the order dated 07.02.2024, passed by the learned 28 th Additional Senior Civil Judge & A.C.J.M., Vadodara, below Exh.11 in Special Civil Suit No.23 of 2024 whereby, the concerned Court rejected the application made under Order VII Rule 10 of the Code of Civil Procedure, 1908. Being aggrieved by the impugned order passed by the concerned Court, the applicant herein has approached this Court under Section 115 of the Code.
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3. Mr. Aadit R. Sanjanwala, learned advocate appearing for the opponent, raised a preliminary objection with respect to the maintainability of the Civil Revision Application and submitted that the applicant herein be relegated to avail the remedy by filing a writ petition invoking Article 227 of the Constitution of India. Reliance was placed on the ratio as laid down in case of Vimal Co-operative Housing Society Ltd. vs. Rajendrakumar Shankerbhai Bhagiya reported in 2003 SCC Online Guj. 46 more particularly, paragraph 29 wherein, it is held that the revision would not be maintainable in view of the fact that the said order would not disposed of the suit finally.
4. Mr. Aaditya Karnavat, learned advocate appearing for the applicant, placed reliance on the ratio as laid down by the Hon'ble Apex Court in case of Harshad Chimanlal Modi vs. DLF Universal Lrd. & Anr. reported in (2006) 1 SCC 364 more particularly, paragraphs 8 and 10 of the said decision wherein, the Hon'ble Apex Court holds that the suit instituted in the Trial Court by the presentation of plaint return, was not a continuation of the suit that was filed. Placing reliance on the same, it was submitted that considering the ratio as laid down by the Hon'ble Apex Court, in the facts of the present case, the Page 2 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined application below Order VII Rule 10 of the Code of the Civil Procedure, 1908 whereby, the application was filed for returning the plaint which came to be rejected by the impugned order, the proceedings attained finality.
5. At this stage, it is apposite to refer to the ratio as laid down by the Hon'ble Apex Court in (2020) 12 SCC 667 wherein, it is held that return of a plaint by Court lacking jurisdiction for presentation before the competent jurisdiction, the suit has to proceed de-novo before the competent Court. Even if, the evidence of parties are already concluded and the matter was fixed for final arguments. It is also held that Order VII Rule 10 read with Rule 10(A) cannot be interpreted as providing any discretion to the Court to proceed with the stage at which the plaint was returned.
5.1 At this stage, it is apposite to refer to Section 115 of the Code of Civil Procedure, 1908, which reads thus:
"115. Revision - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:Page 3 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024
NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court."
5.2 Considering the position of law as referred above and Section 115 of the Code of Civil Procedure, 1908 as well as considering the provision of Order VII Rule 10 of the Code read with Rule 10(A), it is clear that the proceedings come to an end before the concerned Court on allowing such application and the proceedings are to commence de-novo once the plaint is returned for presentation to the competent Court.
In the facts of the present case, the application under Order VII Rule 10 stands dismissed; applying the same principle, the impugned order attained finality and no appeal lies.
6. Under Order 43(1)(a) of the Code of Civil Procedure, 1908, the Appeal from Order is maintainable challenging the order under Order VII Rule 10 returning the plaint to be Page 4 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined presented to the proper Court. In the facts of the present case, the application below Exh.11 praying for return of plaint stands rejected and the said order has attained finality. In view thereof, in the opinion of this Court, the present civil revision application under Section 115 of the Code of Civil Procedure, 1908, is maintainable.
It is required to be clarified that the petition under Article 227 of the Constitution of India would be maintainable as there cannot be bar in exercise of such constitutional supervisory powers. It is however, pertinent to mention that the question herein is with respect to invoking revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908, challenging the order rejecting the application under Order VII Rule 10 of the CPC.
7. The brief facts leading to the filing of the present Civil Revision Application read thus:
7.1 The opponent - original plaintiff instituted Special Civil Suit No.23 of 2024 seeking enforcement of the Non-Disclosure Agreement (NDA) entered into between the opponent - original plaintiff and the applicant herein. The applicant - original Page 5 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined defendant is an individual residing and working at the address referred to in the cause title. The applicant - original defendant applied for job with the opponent - original plaintiff company and was appointed on the post of "Assistant General Manager
- Production" with the opponent company vide Appointment letter dated 01.09.2018. Upon attaining the age of retirement, at the age of 60, as per the terms and conditions of the applicant's appointment, the services of the applicant herein were extended with the opponent company herein as Deputy Unit Head for a period of one year and hence, the applicant herein subsequently, became due to retire from the opponent company on 31.05.2023.
7.2 By further extension letter dated 31.05.2023, the applicant's service with the opponent company came to be further extended for a period of seven months i.e. up to 02.01.2024 as Assistant General Manager considering the request of the applicant. The job profile of the applicant during the course of employment with the opponent company is duly described in paragraph 9 of the plaint. The applicant retired from the opponent company on 02.01.2024 and before that executed a Deed of Undertaking on 28.12.2023 wherein, the Page 6 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined applicant undertook to be bound and adhere to the conditions of the Appointment letter and Non- Disclosure Agreement after the separation from the opponent company.
7.3 The applicant from the date of joining had signed the Appointment letter and the NDA on 02.02.2019 agreeing and undertaking to comply with the terms and conditions stated therein. The applicant breached most important terms of the Appointment letter and the NDA and hence, resulted into filing of the suit being Special Civil Suit No.23 of 2024 seeking the reliefs as prayed for in paragraph 49 of the plaint.
8. Mr. Aaditya Karnavat, learned advocate appearing for the applicant, submitted that the application which was preferred before the competent Court under the provisions of Order VII Rule 10 of the Code, ought to have been allowed by the competent Court wherein, the averments in the plaint more particularly, paragraphs 13 to 35 are such that the same can be tried as an 'Commercial Dispute' as enumerated under the Commercial Courts Act, 2015. Reliance was placed on the definition of 'Commercial Dispute' under the Commercial Courts Act, 2015 and it was submitted that the nature of prayers are not between that of an employer and employee Page 7 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined however, with respect to the disclosure of the information beyond the Non-Disclosure Agreement (NDA) and that, the present application be allowed.
9. Mr. Aadit R. Sanjanwala, learned advocate appearing on caveat for the opponent, also placed reliance on Section 2(1)
(c) of the Commercial Courts Act, 2015. It was submitted that the prayers as prayed for in the suit, did not fall within the ambit of 'Commercial Dispute'. Reliance was placed on Clause
- (xvii) whereby, it was submitted that intellectual property rights include rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits. It was submitted that the suit is filed seeking enforcement of the Non-Disclosure Agreement (NDA) entered into between the original plaintiff - opponent herein and the original defendant - applicant herein in the year 2019 and that, no interference is called for in the order passed by the competent Court.
10. Heard the learned advocates appearing for the respective parties. This Court has perused the plaint being Special Civil Suit No.23 of 2024 duly produced at Annexure - B, page 21. Page 8 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024
NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined On perusal of the paragraphs 7, 8, 9, 12, 13, 14, 16, 30, it emerges that the original plaintiff - opponent herein is seeking enforcement of the Agreement entered into between the parties dated 28.12.2023. Undisputedly, the applicant herein was the employee of the opponent company and has also signed the relevant agreements. The business of the opponent company is unique because the technology, specification, and all other aspects of manufacturing products, which are developed through years of R & D activities, customer and supplier list and pricing of the products are highly confidential and are always kept secret so that the same are not disclosed to or stolen and/or copied by any third party to start manufacturing similar products in competition of the original manufacturer and therefore, considering the nature of business, the employees of the opponent company having access to such confidential and proprietary information are required to be bound by confidentiality and non-compete obligations. That, considering the vulnerability of the said confidential and proprietary information lying in the hands of the applicant acquired by him during the course of his employment with the opponent company, the applicant is under fiduciary and more responsibility to ensure that the Page 9 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined confidential and proprietary information of the opponent company is not unauthorizedly disclosed to third party or stolen or otherwise taken away in an unauthorized manner and/or copied and/or passed on or misused by any third party, or by the applicant. The cause of action arose in first week of January when original plaintiff - opponent herein became aware that the original defendant - applicant herein has gone and joined a company carrying on the same/similar business as that of the opponent company in breach of the Deed of Undertaking, NDA and Appointment Letter giving rise to a reasonable apprehension of breach of confidentiality by the applicant herein by disclosing to its current employer the confidential and proprietary information and data, technical know-how and trade secrets of the opponent herein.
11. In light of the aforesaid, it is apposite to refer to the prayers as prayed for by the original plaintiff - opponent herein in Special Civil Suit No.23 of 2024, which read thus:
"A) A judgment and decree of permanent injunction restraining the Defendant, his family members, legal heirs, associates, agents, servants, contractors or anybody claiming through or under him from using, sharing, passing, transferring or dealing or in any manner transacting with anyone by utilizing, confidential and proprietary information and data, technical know-how and trade secrets of the Plaintiff whether in the form of operations and processes and SOP's including the formulae, chemical composition, specification, process, SOPs, raw material consumptions norms, technology, know how, utility Page 10 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined norms, and research and development facilities and documents, including those related to the development of process for various products including OBAs, technical data, correspondence and information pertaining to, manufacturing process, marketing plans, offers, pricing, customer list, software, specifications, engineering methods and know-how, consumer grievances, customer solutions, service logs, service history and service feedback pertaining to clients or method of resolving area specific problems, details about the Plaintiff company products, plants data, operation data, man power data, sales price, unit cost, overheads, internal business development reports, strategy outlines, new products, new product recipes, norms of raw material, effluent treatment and utilities, key customer data base, customer product basket strategy, product-wise and customer-
wise sales data, products information, competitors' data base, various communication details like email IDs, phone numbers, websites of all internal and external stakeholders, consultants, vendors and suppliers, information about latest innovations, changes, improvements etc. including price information for all products of the Plaintiff; B) A judgment and decree of permanent injunction restraining the Defendant from working, dealing with or functioning in any manner or capacity, or carry on business, either with its current employer or anybody else or independently, in any area or field as that of the Plaintiff for a limited period of 3 years calculated from 02.01.2024 i.e., the date of his release from the Plaintiff company; C) The Hon'ble Court be pleased to grant a permanent injunction restraining the Defendant from breaching the terms and conditions of NDA and Deed of Undertaking executed with the Plaintiff; D) The Hon'ble Court be pleased to direct the Defendant to return the Plaintiff confidential and proprietary information and data, technical know-how and trade secrets of the Plaintiff which is in its possession including but not limited to information as specified in Prayer A hereinabove;
E) The Hon'ble Court be pleased to hold that the Defendant is liable to pay damage of Rs.4000000/- to the Plaintiff; F) The Honble Court be pleased to award the costs of the present suit to the Plaintiff;
G) The Hon'ble Court be pleased to pass such other and further orders as may be deemed fit in the interest of justice."
12. The applicant - original defendant approached the competent Court by preferring an application below Exh.11 under Order VII Rule 10 of the Code of Civil Procedure, 1908 Page 11 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined mainly on the ground that the prayers, as prayed for in the said suit, are in the nature of 'Commercial Dispute' as enumerated under the Commercial Courts Act, 2015 and that, the parties be relegated to the Commercial Court. The competent Court rejected the said application below Exh.11 filed by the applicant herein by passing the impugned order dated 07.02.2024. It is apposite to refer to the relevant paragraph of the said order which reads thus: (true translation) "5. Considering the above legal provisions as well as the facts mentioned in Para - 13, 14, 15, 19, 20, 27, 31, 32 and 35 of the plaint of the Plaintiff, on which reliance is placed, it is found that the Plaintiff Company is involved in works of production, sale, research, pricing etc. of chemicals and the Defendant had made many representations to get job in the Plaintiff Company and after taking into consideration the representations of the Defendant, the Plaintiff Company gave appointment to the Defendant on 01/09/2018 on the designation of "Assistant General Manager - Production". Thus, on perusal of the plaint of the Plaintiff, it is found that the Defendant was working as an employee (on a Managerial Post) of the Plaintiff Company. Moreover, the Plaintiff Company had intimated terms and conditions in the appointment order itself. In addition, the Defendant had executed 'Non-disclosure Agreement' in favour of the Plaintiff Company and the Defendant of the suit was bound to maintain confidentiality regarding all the information and data mentioned Para-(9) of the suit plaint of the Plaintiff Company. Thus, on perusal of the entire plaint of the Plaintiff and taking into consideration the legal provision of Section - 2(1)(c) of the Commercial Dispute Act, 2015 and that the Plaintiff and the Defendant have the relation of Employee and Employer only and hence, the present dispute between them cannot be considered as COMMERCIAL DISPUTE and therefore, as the argument of the Defendant is not tenable that this Court has no jurisdiction to adjudicate the present suit of the Plaintiff, the following final order is passed in the interest of justice.
- : : FINAL ORDER : : -
The present application of Exh. - of the Defendant is hereby not allowed i.e. rejected."
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13. Considering the prayers, as prayed for, in the suit being Special Civil Suit No.23 of 2024, the cause of action and the order impugned whereby, the application of the applicant herein below Exh.11 came to be rejected and having gone through the averments made in the plaint and the findings arrived at by the competent Court, in the opinion of this Court, the prayers, as prayed for, in the said suit do not fall within the ambit of the 'Commercial Dispute'. Clause - (xvii) of section 2(1)(c) of the Commercial Courts Act, 2015, as referred above, provides that intellectual property rights include rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits. The suit is filed seeking enforcement of the Non - Disclosure Agreement (NDA) entered into between the original plaintiff - opponent herein and the original defendant - applicant herein in the year 2019 and in view thereof, the findings arrived at by the competent Court that on perusal of the plaint and considering section 2(1)(c) of the Commercial Courts Act, 2015, the original plaintiff -
opponent herein and the original defendant - applicant herein have the relation of employer and employee only and the suit is filed seeking enforcement of the NDA entered into between Page 13 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024 NEUTRAL CITATION C/CRA/56/2024 ORDER DATED: 15/02/2024 undefined the original plaintiff - opponent herein and the original defendant - applicant herein, does not require any interference.
14. For the foregoing reasons, considering the findings arrived at by the competent Court and having gone through the averments made in the plaint, the cause of action and the prayers as prayed for in the suit being Special Civil Suit No.23 of 2024, no interference is called for in the impugned order dated 07.02.2024 passed by the learned 28 th Additional Senior Civil Judge & A.C.J.M., Vadodara, below Exh.11 in Special Civil Suit No.23 of 2024.
15. The reasons assigned by this Court in the present Civil Revision Application are qua the order dated 07.02.2024, passed by the learned 28th Additional Senior Civil Judge & A.C.J.M., Vadodara, below Exh.11 in Special Civil Suit No.23 of 2024.
16. The present Civil Revision Application stands dismissed accordingly.
(VAIBHAVI D. NANAVATI,J) NEHA Page 14 of 14 Downloaded on : Fri Mar 01 21:26:12 IST 2024