Delhi High Court
Satish Kumar vs Khushboo Singh & Ors. on 14 October, 2019
Equivalent citations: AIRONLINE 2019 DEL 2623
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th October, 2019
+ CS(COMM) 89/2019, IAs No.2499/2019 (u/O XXXIX R-1&2
CPC) & 9149/2019 (u/OVII R-11 CPC)
SATISH KUMAR ..... Plaintiff
Through: Mr. Lokesh Kumar Mishra, Adv.
Versus
KHUSHBOO SINGH & ORS. ..... Defendants
Through: Mr. Mukesh Gupta, Adv. with Mr.
P.S. Rana & Ms. Disha Passi, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff Satish Kumar has instituted this suit against (a)
Khushboo Singh; (b) Abhishek Chauhan; and (c) Aarya Fashion through its
proprietor Khushboo Singh, for
"(i) permanent injunction in favour of the plaintiff and against the
defendants, thereby restraining the defendants and their agents,
servants, relatives, associates, attorney, etc. from logging in,
accessing and using the official email ids of the plaintiff including
[email protected] [email protected]
and further disseminating, reproducing, uploading, publishing,
circulating, broadcasting, distributing, selling, offering for sale the
complete or part of any email part of official email ids of the
plaintiff including [email protected]
[email protected] including eleven emails dated
31.11.2017, 01.11.2017 and 08.11.2017, in the interest of justice.
(ii) permanent injunction in favour of plaintiff and against the
defendants, thereby restraining the defendants and their agents,
servants, relatives, associates, attorney, etc. from using trade
CS(COMM) 89/2019 Page 1 of 31
secrets, privilege information and poached clientage including
MOA based in France, TS 14+based in Australia, Frag Commercio
Internacional based in Spain, Ropanes.I. based in Spain, Lovisa
based in Australia, SferaJoven S.A. based in Spain, DCK
Concession based in United Kingdom, Vaibheave Global Ltd. based
in India, H.Versteegh Amsterdam B.V. based in Netherlands,
ModaJavenSfera Mexico S.A.DE C.V. based in Mexico, Pipol‟s
Bazaar AB based in Sweden, Zoda based in Australia, Atoll Palme
based in France, Stella Forest based in France, Ha Sh Fashion
Accessories House Ltd. based in Israel, Alibey Accessories based in
Spain, IntresesComunes SL based in Spain, Natasha Accessories
based in USA, Virginia Pozo Castro Coosy based in Spain, DG
Diffusion/ExodifZac de la masquere based in France, M/s Ikat and
Casemire based in Australia, PT.Lakra based in Indonesia and
PFG of Sweden AB based in Sweden of the Plaintiff, in the interest
of justice
(iii) permanent injunction in favour of plaintiff and against the
defendants, thereby restraining the defendants and their agents,
servants, relatives, associates, attorney, etc. from further accessing
the clientage of the plaintiff including Stephen & Co. based in USA,
Shalom International based in USA, Kappahl based in Sweden,
Inditex Group based in Spain, Pull & Bear based in Spain,
Bershka based in Spain, Lefties based in Spain, EncuentroModa
based in Spain, Roman Habermann based in Germany, Fun
Accessories based in Australia, SarinaAccessories based in USA,
Myriad Sourcingbased in India, Puntoroma based in Spain,
Misakobased in Spain, NES Group based in USA, Eziybuybased in
Australia, Ronald A/S based in Denmark, House Docter Aps based
in Denmark, Barata&Ramilo S.A. (Parfoise) based in Portugal,
Monnari Trade S.A.based in Poland, Bijou Brigitte Modische
Accessories AG based in Germany, Mitzsche International based in
Germany, International Inspiration Ltdbased in USA, Ballet Group
CS(COMM) 89/2019 Page 2 of 31
Inc. based in USA, Vision 101 S.A.based in Argentina, Shanghai
Yepai E.Commerce Co.Ltd. based in China, LPP S.A. based in
Poland, White Stuff Limited based in United Kindgdom and WWG
Limited based in United Kingdom, in the interest of justice.
(iv) mandatory injunction in the favour of plaintiff and against the
defendants and their agents, servants, relatives, associates,
attorney, etc. thereby directing the defendants to handover the trade
secrets, privilege information and clientage of the plaintiff to the
plaintiff company and stop dealing with the clientage of the plaintiff
company, in the interest of justice.
(v) amount of Rs.2,02,00,000/- as damages in addition to
further damages as may be determined by this Hon‟ble Court, in
the interest of justice.
(vi) cost of the proceedings be also passed in favour of the
plaintiff and against the defendants, in the interest of justice."
2. It is the case of the plaintiff in the plaint, (i) that the plaintiff is the
sole proprietor of Plasma Impex Inc. and is engaged in business of
supplying, importing, exporting, manufacturing and production of all kind of
merchandise and handicrafts, gifts, imitation jewellery, fashion accessories,
carpets, durries, mats, rugs, linen, flannels, etc.; (ii) that the defendant no.1
Khushboo Singh was working as the General Manager of Plasma Impex Inc.
since 19th March, 2012, until her termination on 31st October, 2017; (iii) that
the defendant no.2 Abhishek Chauhan is the husband of defendant no.1 and
was the Co-Director of another venture of the plaintiff in the name and style
of Kraftstreet Fashion India Pvt. Ltd. and who also parted away from the
plaintiff in October, 2017, stealing computer database, trade secrets and
CS(COMM) 89/2019 Page 3 of 31
clientage of Kraftstreet Fashion India Pvt. Ltd.; (iv) that the defendant no. 2
has set up new proprietary in the name of defendant no.3 Aarya Fashion,
dealing in similar business as the plaintiff; (v) the plaintiff has developed
and maintained various confidential data and information regarding internal
processes, specific client profile, client details, business strategy and
methods, finances, client budget, pricing structure, upcoming projects, etc.;
all this confidential information has been developed over a period of several
years by putting in extensive efforts; (vi) that the defendant no.1, as an
employee of the plaintiff, had access to some of its secret and confidential
data during the course of her employment with the plaintiff; (vii) that the
defendant no. 1, on termination of her employment, took wrongful
possession of various important and confidential files, documents, records
and the defendants are now using the same for their business in the name
and style of defendant no.3; (viii) that the defendants, by accessing
[email protected] and [email protected], which are
the official e-mail IDs of the plaintiff, have further taken the privileged
information, customer database and other confidential data of the plaintiff
and have procured certain emails of the plaintiff and produced the same
before this Court in CS(OS) 668/2017; (ix) that the defendants were
defaming the plaintiff and in which respect CS(OS) 668/2017 has been filed
by the plaintiff against the defendants; (x) that on complaint of the plaintiff,
FIR No.755/2017 was also registered against the defendants on 16th
December, 2017 at police station New Ashok Nagar and defendants have
stolen the clientage of the plaintiff by accessing the customer database of the
plaintiff; (xi) the defendants, with the use of such privileged information has
started dealing with the clientage of the plaintiff and are causing loss to the
CS(COMM) 89/2019 Page 4 of 31
plaintiff; (xii) the customer database of the plaintiff is protected by
copyright as an original literary work and being a compilation is a literary
work within the meaning of Section 2(o) of the Copyright Act, 1957 and the
plaintiff is the owner of copyright therein; (xiii) the said clientage of the
plaintiff has been built over the years by making several foreign visits in
different countries; (xiv) the defendants have caused injury to the plaintiff;
(xv) on 6th December, 2018, an undertaking was recorded that the parties
will not pursue any case against each other until the mediation proceedings
are pending and it was due to this that the plaintiff could not file the suit
immediately; and, (xvi) on 16th January, 2019, the plaintiff discovered that
the defendants have again accessed the emails of the plaintiff; the
defendants by doing so, got to know the latest client of the plaintiff in
Sweden.
3. The suit came up first before this Court on 18th February, 2019, when
attention of the senior counsel then appearing for the plaintiff was drawn to
the dicta of this Court in Navigators Logistics Ltd. Vs. Kashif Qureshi 2018
SCC OnLine Del 11321 and it was enquired as to how the suit claim was
within time.
4. On adjournment being sought by counsel for the plaintiff on 18 th
February, 2019, for the sake of expediency, summons were also issued
though no ex parte relief sought granted.
5. The plaintiff preferred FAO(OS) 45/2019 against non-grant of ex
parte relief and which was disposed of vide order dated 26th February, 2019
with liberty to the plaintiff to make its contentions before this Bench.
6. The suit came up before this Bench on 14 th March, 2019 when it was
yet again enquired from the senior counsel for the plaintiff, whether not the
CS(COMM) 89/2019 Page 5 of 31
claim with respect to customers list was covered by Navigators Logistics
Ltd. supra; yet again adjournment was sought on behalf of the plaintiff,
stating that further arguments would be addressed only after written
statement is filed by the defendants.
7. On 28th March, 2019, the aspect of constituting the confidentiality
club was debated and a confidentiality club was created with respect to the
documents qua which the plaintiff claimed confidentiality.
8. The defendants have filed IA No.9149/2019 under Order VII Rule 11
CPC for rejection of the plaint. The said application came up before the
Court on 10th July, 2019 when it was adjourned to 22nd July, 2019, observing
that the same, though did not disclose a case for rejection of the plaint, did
disclose a ground for summary judgment against the plaintiff.
9. The counsel for the defendants, on 22nd July, 2019 contended that the
suit is squarely covered by Navigators Logistics Ltd. supra and liable to be
dismissed. The counsel for the plaintiff, on 22nd July, 2019 yet again sought
an adjournment to address on the said aspect though attention of the counsel
for plaintiff had been drawn to the said aspect even five months prior thereto
on 18th February, 2019. However, on request of counsel for the plaintiff,
adjournment was granted subject to the plaintiff paying costs to the counsel
for the defendants.
10. The counsel for the plaintiff has today paid the costs but again seeks
adjournment stating that certified copies have been applied of documents
filed by the police pursuant to the prosecution in FIR aforesaid, but have not
been obtained and are required to be obtained. On further enquiry, it is
stated that the documents are the documents of exports made by the
defendants to customers of the plaintiff by hacking the emails.
CS(COMM) 89/2019 Page 6 of 31
11. I have enquired from the counsel for the plaintiff, whether not the
question for adjudication is, the right, if any, of the plaintiff as an ex-
employee of the defendant no.1, to restrain the defendant no.1 from
competing with the plaintiff by dealing with the same set of persons with
whom the plaintiff was dealing in during the course of employment of the
defendant no.1 with the plaintiff.
12. No response is forthcoming from counsel for the plaintiff.
13. The plaintiff, after filing a commercial suit, cannot when enquired
about the very maintainability thereof in view of pleaded facts and law, seek
adjournment after adjournment, as is being done in the present case.
14. No ground for granting adjournment to file certified copies of the
documents is also made out. The plaintiff, as aforesaid, since 18 th February,
2019 is aware of what was required from it and/or what was being enquired
into and if has not filed the documents till date in spite of eight months
having elapsed since then, cannot be permitted to keep the suit pending in
this fashion.
15. On enquiry of the date when the certified copies, on the ground of
need for filing whereof adjournment has been sought today, were applied
for, it is stated that they were applied for on various dates, with the first date
being 11th September, 2019. The counsel for the plaintiff states that in fact
the police filed the documents of which certified copies have been applied
for 'later on', but is unable to give any date.
16. The counsel for the plaintiff, during the course of hearing has shown
photocopies of the said documents, demonstrating that the plaintiff is
possessed of photocopies and if felt the said documents to be relevant, could
have also placed the photocopies on record under Order XI Rule 1 as
CS(COMM) 89/2019 Page 7 of 31
applicable to commercial suits. The documents of exports affected by the
defendants would even otherwise have no bearing on the aspect on which
the plaintiff was required to address this Court.
17. The averments in the plaint do not disclose the plaintiff to be having
any copyright in any original literary work within the meaning of Section
2(o) of the Copyright Act, 1957 and in fact the documents in which
copyright is claimed are not even before this Court till now, in spite of being
enquired into since 18th February, 2019. A plaintiff, when filing a suit,
specially a commercial suit, ought to take care to plead its case properly in
the plaint and produce all documents sought to be relied on along with the
plaint. In this context it has been observed in Zee Entertainment
Enterprises Vs. Saregama India Ltd. 2019 SCC OnLine Del 10215 as
under:-
"13. The changes brought about by the Commercial Courts
Act, 2015 in respect of filing of documents having already been
discussed in Nitin Gupta Vs. Texmaco Infrastructure and
Holding Limited 2019 SCC OnLine Del 8367 and Societe Des
Produits Nestle S.A. Vs. Essar Industries 2016 SCC OnLine Del
42, need to reiterate the same is not felt. Suffice it is to state
that:
(a) while
Order VII Rule 14 of the CPC, applicable to ordinary
suits, requires a plaintiff, when suing upon a document or
relying upon documents in his possession or power in
support of his claim, to enter such documents in a list and
to produce it in the Court when the plaint is presented by
him,
Order XI Rules 1 to 3 of the CPC as applicable to
commercial suits requires a plaintiff to file a list of all
documents and photocopies of all documents in its power,
possession, control or custody, pertaining to the suit,
CS(COMM) 89/2019 Page 8 of 31
along with the plaint including documents relating to any
matter in question in the proceedings, in the power,
possession, control or custody of the plaintiff, as on the
date of filing the plaint, irrespective of whether the same
is in support of or adverse to the plaintiff‟s case and to, in
the said list also specify whether the documents in the
power, possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list to also
set out in brief, details of parties to each document, mode
of execution, issuance or receipt and line of custody of
each document; the plaint is also required to contain a
declaration on oath from the plaintiff that all documents
in the power, possession, control or custody of the
plaintiff, pertaining to the facts and circumstances of the
proceedings initiated by him have been disclosed and
copies thereof annexed with the plaint, and that the
plaintiff does not have any other documents in its power,
possession, control or custody;
(b) while
Order VII Rule 14(3) of the CPC pertaining to ordinary
suits provides that a document which ought to be
produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or
annexed to the plaint, but is not produced or entered
accordingly, such document, without the leave of the
Court, shall not be received in evidence on behalf of the
plaintiff at the hearing of the suit,
Order XI Rule 1(5) pertaining to commercial suits, bars
the Court from allowing the plaintiff to rely on documents
which were in the plaintiff‟s power, possession, control or
custody and not disclosed along with the plaint, save and
except by leave of the Court and which leave shall be
granted only upon the plaintiff establishing requisite
cause for non-disclosure along with the plaint.
It would thus be seen that the requirement for filing of
documents along with the plaint is much more detailed,
precise and specific in a commercial suit than in an
CS(COMM) 89/2019 Page 9 of 31
ordinary suit. The plaintiff in an ordinary suit is required
to produce along with the plaint only such documents on
which he is suing or on which he intends to rely in support
of his claim. On the contrary, in a commercial suit, the
plaintiff along with the plaint is required to file all
documents pertaining to the suit irrespective of, whether
the same are in support of or adverse to the claim of the
plaintiff. The list of documents required to be filed by a
plaintiff in an ordinary suit is only required to have an
entry of the document. On the contrary, the list of
documents required to be filed by a plaintiff in a
commercial suit is required to specify, whether the
documents are originals or office copies or photocopies
and also contain details of parties to each document,
mode of execution and line of custody of each document.
The plaint in a commercial suit is also required to contain
a declaration on oath from the plaintiff with respect to the
documents, as aforesaid. There is no such requirement in
the ordinary suit.
14. What emerges is, that the plaintiff in a commercial suit,
before instituting the suit, is required to go through all the
documents in his power, possession, control or custody
pertaining to the subject matter of the suit, whether in support of
or adverse to his case and make a declaration with respect
thereto on oath. The requirement in a commercial suit of
declaration on oath qua the documents is not an empty formality.
The form of list of documents and the particulars/specifications
to be contained therein, coupled with declaration on oath with
respect thereto, in a commercial suit, requires a plaintiff to, at
the time of institution of suit, rather than stating only the title
and date of the document, which alone is required to be filled in
the list of documents in an ordinary suit, peruse each document
and only then fill the particulars/specifications required to be
filled in the list of documents. The requirement of such contents
being declared to be correct on oath, places a more heavy onus
on the plaintiff.
CS(COMM) 89/2019 Page 10 of 31
15. Preparation of such a list of documents as aforesaid,
leaves no scope of „inadvertent errors‟ as is pleaded by the
plaintiff.
16. A plaintiff in an ordinary suit, if desirous of producing a
document required to be produced along with the plaint at a
subsequent stage, is only required to obtain the leave of the
Court. The Legislature has not laid down the grounds on which
such leave is to be granted. I have however in Nitin Gupta
supra held that grant of such leave by the Court is not a
ministerial function and the Court has to be satisfied qua the
reasons for non-production of the documents along with the
plaint. The same however places no restriction on the power of
the Court to grant such leave. As distinct therefrom, under
Order XI Rule 1(5) as applicable to commercial suits, there is an
embargo on the Court, not to allow the plaintiff to rely on any
document which was in plaintiff‟s power, possession, control or
custody and not disclosed along with the plaint. The disclosure
under Rules 1(1) & (2) has to be accompanied with listing and
filing of the documents. The said embargo placed on the Court
can be lifted only upon the plaintiff establishing reasonable
cause for non-disclosure along with the plaint. The use of the
word „establishing‟ conveys that there should be something more
than a mere explanation for non-production along with plaint,
amounting to proof of the explanation."
18. It has been held in Navigators Logistics Ltd. supra as under:-
"16. Reliefs claimed in the suit may be grouped as, (i) for
permanent injunction restraining infringement of copyright and
for recovery, purportedly of damages, for infringing copyright
of the plaintiff; (ii) for permanent injunction enforcing the
clauses, in the claimed employment contracts, whereunder the
defendants no.1 to 8 had agreed not to divulge, during
employment with the plaintiff or even after leaving the
employment of the plaintiff, any trade secrets, research process,
financial/administrative and/or organizational matters or any
transactions or affairs of the plaintiff to anyone else and/or
damages for breach thereof; and, (iii) for permanent injunction
enforcing the clauses, in the claimed employment contracts,
CS(COMM) 89/2019 Page 11 of 31
whereunder the defendants no.1 to 8 had agreed not to compete
with the plaintiff for a period of one year after leaving
employment of the plaintiff, either by carrying on the same
business themselves or by joining employment of any competitor
of the plaintiff and/or damages for breach thereof.
17. What has to be seen at this stage is, whether in the event
of the plaintiff proving the averments in the plaint and the
documents filed therewith (and without noticing any of the
defences of the defendants save legal ones) the suit can succeed.
If it is found that even if the plaintiff were to prove what is
pleaded in the plaint, the plaintiff still has no chance of
succeeding in the suit, a case for rejection of plaint at this stage
only will be made out. The Division Bench of this Court in Dr.
Zubair Ul Abidin Vs. Sameena Abidin @ Sameena Khan
(2014) 214 DLT 340 (DB) (SLP(C) No.369-370/2015 preferred
whereagainst was dismissed on 16th January, 2015) has,
referring to various earlier judgments held that if on a
meaningful, not formal, reading of the plaint, it is found to be
not disclosing a right to sue or the claim therein is found to be
barred by any law or it is found that there is absolutely no
chance of success on such averments, the Court should exercise
its power and should not allow it to create an illusion and
should not permit it to go to trial and such docket which are
deadwood should not be permitted to burden the Court.
Reference in this regard context may also be made to Geodis
Overseas Pvt. Ltd. Vs. Punjab National Bank 2016 SCC
OnLine Del 1037.
18. I will first take up the claim of the plaintiff on the basis of
copyright.
19. The plaintiff, in para 5 of the plaint, claims copyright, as
under:-
"5. That the plaintiff has developed and evolved very
distinctive, detailed and comprehensive data, information
and databases pertaining to running its business. This
includes all the confidential data, customer database,
accounts information, airway drawings, airway bills
templates, plans, reports, taxes and other financial
CS(COMM) 89/2019 Page 12 of 31
information, process, financial/administrative and/or
organizational information as well as transactions based
templates and internal notings and trade secrets of the
plaintiff company. The plaintiff has collated all its
experiences together not only from India but from around the
world pertaining specifically to the operation of its business
and has documented the same in the form of confidential data
and information as also confidential databases, including
data and information in the electronic form."
and in para 7 of the plaint, further pleaded as under:-
"7. That the said information, data and other related
materials are original artistic and literary works of the
plaintiff within the meaning of Section 2(c) and (o)
respectively of the Copyright Act, 1957. The plaintiff has got
copyright in the said information, data and other related
materials under Section 13 of the Copyright Act, 1957. The
plaintiff is the first owner of the copyright in the said
information, data and other related materials under Section
17 of the Copyright Act."
20. It is the case of the defendants that there can be no
copyright in customer database, accounts information, airway
drawings, airway bills templates etc.
21. The plaintiff, save for the aforesaid description, has not
given any other description of the works in which it claims
copyright and no document also has been filed in this regard.
As per the reports of the commissions issued at the instance of
the plaintiff also, what has been found in possession of the
defendants is the list of customers and clients serviced by the
plaintiff and their contact persons. Though the Commissioners
have reported also finding e-mails/skype chats inter se the
defendants while working with the plaintiff and/or e-mails
between the defendants and present employee of the plaintiff,
but there can possibly be no copyright therein.
22. What is thus for adjudication is, whether there can be any
copyright in a list of customers/clients with their contact
persons/numbers maintained by the service provider. Though
the plaintiff has in the plaint generally pleaded database
CS(COMM) 89/2019 Page 13 of 31
pertaining to, running of business accounts information, airway
drawings, airway bills templates, plans, reports, taxes and other
financial information, process, financial/administrative and/or
organizational information as well as transactions based
templates and internal notings and trade secrets of the plaintiff
company, but the said words/phrases, though high-sounding,
are vague and do not constitute a plea in law within the
meaning of Order VI Rules 2,4,9 and Order VII Rules 1(e) and
7 of the Code of Civil Procedure, 1908 (CPC). In this context, it
may be also mentioned that using such high-sounding/phrases
which in fact have no content or meaning, a large number of
suits are filed in this Court against the ex-employees and it has
often been found that interim injunctions issued restraining the
ex-employees from divulging the same to any other person
remain unenforceable in the absence of particulars and with
applications under Order XXXIX Rule 2A of the CPC being
filed with respect to all communications made by such
employees with others and with it being absolutely impossible
for the Court to determine whether the communication is in
violation of the interim order. It is for this reason only that
Section 41(f) of the Specific Relief Act, 1963, and principles
whereof are applicable to temporary injunctions also, prohibits
grant of injunction to prevent, on the ground of nuisance, an act
of which it is not reasonably clear that it will be a nuisance.
Similarly, without specifying the information, disclosure of
which is sought to be restrained, an injunction cannot be
granted; rather I have wondered the purport of the interim
order dated 3rd June, 2016 in this suit, restraining the
defendants from utilizing, exploiting, copying, transmitting,
publishing or releasing any confidential information and trade
secrets of the plaintiff to any entity for any purpose whatsoever,
without specifying as to which is that confidential information
and trade secret. It is for this reason that I have hereinabove
observed that what is for adjudication is, whether list of
customers/clients with their contact numbers prepared/drawn
up by a service provider can be said to be a work in which such
service provider can have copyright.
CS(COMM) 89/2019 Page 14 of 31
23. Copyright, as distinct from a trademark, is a statutory
and not a common law right or a natural right. Reference if any
in this regard can be made to Time Warner Entertainment
Company L.P. Vs. RPG Netcom (2007) 140 DLT 758,
Entertainment Network (India) Ltd. Vs. Super Cassette
Industries Ltd. (2008) 13 SCC 30 and Krishika Lulla Vs.
Shyam Vithalrao Devkatta (2016) 2 SCC 521. Thus unless it
can be found that a copyright vests in such a list under the
Copyright Act, the plaintiff cannot have any right in the list
maintained/prepared/compiled by the plaintiff of its
customers/clients with their contact persons/numbers.
24. Per Section 13(1) of the Copyright Act, copyright subsists
in the following classes of works, that is to say:-
"(a) original literary, dramatic, musical and artistic
works;
(b) cinematograph films; and ,
(c) sound recording".
25. The list aforesaid is not a cinematograph film or a sound
recording. The first question to be thus determined is, whether
the said list qualifies as an original literary, dramatic, musical
and artistic work.
26. The list does not fall in the definition of artistic work or
dramatic work or musical work, as defined in Section 2(c),(h) &
(p) respectively. Literary work is defined in Section 2(o) as
including computer programmes, tables and compilations
including computer databases. The definition of literary work
is inclusive and the inclusion contains compilations.
27. The question which thus arises is, whether all
compilations are literary work in which copyright can subsist.
28. As practicing Advocate, the list/compilation of my clients
and their phone numbers was generated by my smartphone by
entering the list of contacts in my phone. I never considered the
same as a literary work or myself as the author of the said
list/compilation.
CS(COMM) 89/2019 Page 15 of 31
29. In Burlington Home Shopping Pvt. Ltd. supra, a single
Judge of this Court was concerned, with an application for
interim relief in a suit by mail order service company against its
ex-employee for injunction restraining breach of copyright and
confidentiality, pleading that compilation of addresses was
developed by devoting time, money, labour and skill, though the
sources may be commonly situated, amounted to a `literary
work' wherein an author has a copyright. Finding, that the
database available with defendant therein was substantially a
copy of the database available with the plaintiff therein and
compiled by the plaintiff therein, interim injunction was
granted. Similarly, in Diljeet Titus, Advocate supra, another
single Judge held in the context of an Advocate/law firm that
copyright subsists in a list containing details about the
particular persons such law firm is handling and the nature of
the work or the contact person in the client‟s company and
especially designed by an Advocate of his Court matters. The
third judgment cited by counsel for plaintiff, viz. Mayar (H.K.)
Ltd. supra is not on the aspect of copyright but on Order VII
Rule 11 of the CPC.
30. I have in Tech Plus Media Private Ltd., relied upon by
the counsel for the defendants and against which no appeal is
found to have been preferred, in the context of a list of names
and address of visitors to the new portals of the plaintiff in that
case or the comments of such visitors, held that the plaintiff
could not be said to be the author or composer or having
contribution in the same. Burlington Home Shopping Pvt. Ltd.
and Diljeet Titus, Advocate supra were noticed but it was
further held (i) that both the said judgments are of a date prior
to the pronouncement of the Supreme Court in Eastern Book
Company Vs. D.B. Modak (2008) 1 SCC 1, laying down (i) that
to claim copyright in a compilation, the author must produce
the material with exercise of his skill and judgment which may
not be creativity in the sense that it is novel or non-obvious but
at the same time it is not a product merely of labour and
capital; and, (ii) that the exercise of skill and judgment required
to produce the work must not be so trivial that it could be
characterized as a purely mechanical exercise. Accordingly, it
CS(COMM) 89/2019 Page 16 of 31
was held that copy edited judgments would not satisfy the
copyright merely by establishing amount of skill, labour and
capital put in the inputs of the copy edited judgments as the
original or innovative thoughts for the creativity are completely
excluded. Notice in Tech Plus Media Private Ltd. was also
taken of Emergent Genetics India Pvt. Ltd. Vs. Shailendra
Shivam 2011 (47) PTC 494. Reliance in Tech Plus Media
Private Ltd. was also placed on Dr. Reckeweg & Co. GMBH
Vs. Adven Biotech Private Ltd. 2008 (38) PTC 308 (Del),
wherein, dealing with the issue of copyright in a compilation in
a brochure, of nomenclature of drugs, the listing of the
medicines in a particular fashion, the description and the
curative effect, the principle of law enunciated by the Supreme
Court in Eastern Book Company supra was applied. It was
held that no copyright subsists therein in the absence of
employment of any skill judgment and labour in compilation
thereof. It was further held that without specifically averring as
to the manner/technique/criteria employed in such
sequencing/collection and the originality in the same, the
plaintiff could not succeed in its claim. It was yet further held
that the compilation in that case was a derivative work in the
sense of being a collection of sequencing of already existing
information and did not satisfy the standard of creativity
required to qualify as a work in which copyright subsists. It
was explained that the standard of creativity required in such
derivative work is higher than the standard required in cases of
primary works. Resultantly, the plaint in Tech Plus Media
Private Ltd. was rejected.
31. I may state that the pleadings in the present suit are
equally vague as in Tech Plus Media Private Ltd. There is no
averment in the plaint of the technique/criteria in compiling the
list of customers.
32. Further, Section 13(2) is as under:-
"Copyright shall not subsist in any work specified
in sub-section (1), other than a work to which the
provisions of section 40 or section 41 apply, unless,--
CS(COMM) 89/2019 Page 17 of 31
(i) in the case of a published work, the work is first
published in India, or where the work is first published
outside India, the author is at the date of such
publication, or in a case where the author was dead at
that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a
work of architecture, the author is at the date of the
making of the work a citizen of India or domiciled in
India; and
(iii) in the case of work of architecture, the work is
located in India.
Explanation.-- In the case of a work of joint authorship,
the conditions conferring copyright specified in this sub-
section shall be satisfied by all the authors of the work."
33. Thus, even if list compiled/prepared by the plaintiff of its
customers/clients with contact persons/numbers were to qualify
as a original literary, dramatic, musical and artistic works (it
cannot possibly be a cinematographic film or a sound
recording), copyright will not vest therein unless the said list
has been published or unless the said list, if unpublished, is
authored by a citizen of India or domiciled in India.
34. Section 3 of the Copyright Act defines „publication‟ as,
making a work available to the public by issue of copies or by
communicating the work to the public. It is not the case of the
plaintiff that it has published the said list, for clause (i) of
Section 13(2) to apply. For clause (ii) of Section 13(2) to apply,
the author of the list has to be citizen, of India or domiciled in
India. The plaintiff claims ownership of copyright under Section
17 of the Act, presumably under clause (c) thereof. However,
the plaintiff has not disclosed the name of the author, who was
employed with the plaintiff. The plaintiff, which is a company,
cannot be the author. This Court in Rupendra Kashyap Vs.
Jiwan Publishing House Pvt. Ltd. 1994 (28) DRJ 286 held, in
the context of question papers for an examination, that the
author of the examination paper is a person who has compiled
the questions; the person who does this compiling, is a natural
CS(COMM) 89/2019 Page 18 of 31
person, a human being, and not an artificial person; Central
Board of Secondary Education is not a natural person--it
would be entitled to claim copyright in the examination
papers only if it establishes and proves that it has engaged
persons specifically for purposes of preparation of compilation,
known as question papers, with a contract that copyright
therein will vest in Central Board of Secondary Education. I
also, in Tech Plus Media Private Ltd. supra have held that a
juristic person is incapable of being the author of any literary
work in which a copyright may exist, though may be owner of
copyright. The plaintiff has not disclosed the identity of author.
The plaintiff does not claim any confidentiality about such
identity. It was essential for the plaintiff to disclose identity of
the author, to claim ownership of copyright.
35. In my opinion, for this reason alone, there can be no
copyright in the plaintiff in the list aforesaid.
36. The reliefs claimed by the plaintiff on the basis of
copyright thus have no chance of success in the suit and the
plaint is liable to be rejected, insofar as on the premise of
copyright.
37. That brings me to the second premise on which the
plaintiff has claimed the reliefs i.e. enforcement of clauses in
the employment contracts which prohibited the defendants No.1
to 8 from divulging confidential information of the plaintiff.
38. In fact, it is this part of this judgment which has led to the
delay in pronouncement thereof as I was quite hazy and foggy
about such rights of confidentiality, under the contract and
otherwise and enforceability thereof.
39. Confidentiality and secrecy is claimed in the same works
in which copyright is claimed viz. data, information and trade
secrets residing in the electronic devices without again
specifying the particulars thereof or secrecy thereof. Mere
mention of research process, financial / administrative and / or
organizational matter or transaction or affairs of the company
or invention or discovery or patent protection does not satisfy
the requirements of pleadings. The plaintiff as per its own
admission is engaged in the business of providing logistics and
CS(COMM) 89/2019 Page 19 of 31
freight forwarding services and is not engaged in any research
work, it was incumbent for the plaintiff to, in the plaint, plead
how the data etc. in which confidentiality is claimed is different
from data of any other entity engaged in such business and
what is secret about the same and what steps besides the clause
aforesaid in the letters of appointment of defendants no.1 to 8
have been taken by the plaintiff to maintain secrecy /
confidentiality thereof. The plaint in this regard is vague and
cannot be put to trial. The whole purpose of pleadings in a civil
suit is to let the opponent know the case to be met and which
crystallizes ultimately in issues on which the parties go to trial.
If such rules of pleadings are not to be adhered to, it will result
in a fishing and roving enquiry and enable a party to the suit to
secure a victory by springing a surprise during the course of
trial. Similarly, an injunction qua confidentiality as sought,
even if granted would be vague and unenforceable as aforesaid.
This Court cannot pass such unenforceable order, the meaning
whereof is not clear. It cannot be known, neither to the Court
nor to the defendant as to what the defendant is injuncted from
doing.
40. Specific mention in the plaint as aforesaid is only qua the
list / compilation of customers with details of contact person /
numbers. Copyright was also claimed in the same list and
which has not been found. What troubled me was that the law
having not protected such a list as a copyright, what could be
right in law of the plaintiff to enforce confidentiality thereof. I
then came across the article titled "The „Other IP Right‟: Is It
Time to Codify the Indian Law on Protection of Confidential
Information" authored by Mr. Prashant Reddy T, Assistant
Professor, NALSAR, Hyderabad published in Journal of
National Law University, Delhi 5(1) 1-21, analysing the law
with respect to confidential information and authoring (i)
Article 39 of the Trade Related Aspects of Intellectual Property
Rights (TRIPS) Agreement signed by India imposed an
obligation on contracting states to provide means to protect
secret information that has commercial value from disclosure
without the consent of the persons who have maintained the
secrecy of such information; (ii) however India did not enact
CS(COMM) 89/2019 Page 20 of 31
any new laws on the issue of trade secret protection meaning
that Indian government considered its existing laws sufficient to
comply with the requirements of Article 39; (iii) confidential
information under English law is protected under both common
law and equity with remedies of injunction and damages; (iv)
however English law does not equate information to property
unlike some other jurisdictions, such as the United States where
trade secrets are treated as property; (v) India‟s approach to
confidential information has been the same as that of English
Courts; (vi) Indian Courts, even in the absence of a contract
have protected information received under a duty of confidence;
reference is made to John Richard Brady Vs. Chemical
Process Equipments Pvt. Ltd. AIR 1987 Del. 372; and, (vii)
English Courts have implied a duty of fidelity into the arrangement
between an employer and employee.
41. On facts as pleaded in plaint it appeared that there can
be no confidentiality about such a list. Just like
customers/clients of an Advocate practicing in the field of
acquisition of land and determination of compensation therefor
can comprise only of those whose land has been acquired and
whose particulars are contained in the acquisition notification
and/or award pronounced by the Land Acquisition Collector,
similarly the list of customers/clients of the plaintiff, carrying
on business in the field of logistic and freight forwarding, can
only comprise of businesses/industry requiring carriage of
goods and material and none else. Names and contact
addresses of such businesses are easily available in public
domain. Any competitor of the plaintiff worth its salt would also
know of such businesses/industry and be free to market his
services to them, even if presently employing the service of the
plaintiff. I am thus unable to fathom the confidentiality therein
and during the hearing also repeatedly enquired about the same
and also enquired about the particulars of other
works/databases and in which also copyright and
confidentiality was claimed. No answer was forthcoming. Every
customer list cannot qualify as confidential information or a
trade secret unless the confidentiality around such a list is of
economic value/business value/commercial value. A thought
CS(COMM) 89/2019 Page 21 of 31
also crossed my mind, whether not any employee of the plaintiff,
dealing with the customers/clients of the plaintiff on behalf of
the plaintiff, would have knowledge of the said
customers/clients and their contact address even in the absence
of a list and how could such an employee, when joining the
employment of a competitor, be prevented from marketing the
services of the competitor to the employees/clients at the
address on which he was earlier servicing them under
employment of the former employer and whether not it would
amount to restraint of trade.
42. In fact today, trade/business directories are available of
each trade/business and wherefrom names and addresses of all
in a particular trade/business/industry can be known.
43. In Star India Pvt. Ltd. Vs. Laxmiraj Seetharam Nayak
2003 SCC OnLine Bom 27 it was held that everyone in any
employment for some period would know certain facts and
would get to know some information without any special effort;
all such persons cannot be said to know trade secrets or
confidential information and that every opinion or general
knowledge of facts cannot be labelled as trade secrets or
confidential information. It was yet further held that if such
items are called as trade secrets, or secret, would lose its
meaning and significance. It was held that the basic nature of
the business dealings of the plaintiff in that case with its
advertisers would be openly known and cannot be called a
trade secret or a confidential information; the rates of the
advertisements are within the public domain and every
businessman generally knows the rates of his rivals; the
concerned people know the rates of the advertisements; unless
they are told the rates and other conditions of the
advertisements, no business transaction can be done; such
matters are not even open secrets. Similarly it was held that
fixation of rates etc. depends on a number of factors including
the popularity, in that case of T.V. serial and the time-slots of
the display of such T.V. serials and mere use of the words
„strategies‟, „policy decisions‟ or „crucial policies‟ repeatedly
in all the items does not acquire the position or character of
secrecy. It was held that there was nothing on record from
CS(COMM) 89/2019 Page 22 of 31
which it could be inferred that the defendant had come to know
any trade secrets or confidential information concerning the
plaintiff company and its business especially when the trade
secrets and the confidential information were not even spelled
out.
44. This Court also, in Ambiance India (Private) Ltd. Vs.
Naveen Jain 2005 SCC OnLine Del 367 held that written day
to day affairs of employment which are in the knowledge of
many and are commonly known to others cannot be called trade
secrets. It was further held that trade secret can be a formulae,
technical know-how or a peculiar mode or method of business
adopted by an employer which is unknown to others. It was yet
further held that in a business house, the employees discharging
their duties come across so many matters but all these matters
are not trade secrets or confidential matters or formulae, the
divulgence of which may be injurious to the employer and if an
employee on account of employment has learnt some business
acumen or ways of dealing with the customers or clients, the
same do not constitute trade secret or confidential information,
divulgence or use of which should be prohibited.
45. This Court again in American Express Bank Ltd. Vs.
Priya Puri 2006 SCC OnLine Del 638 held that the plaintiff in
that case, in the garb of confidentiality, was trying to contend
that that once the customer of the plaintiff, always a customer of
the plaintiff. It was further held that the plaintiff, a bank in that
case, could not restrain its competitor banks from dealing with
the customers of the plaintiff bank on the ground that the
plaintiff bank maintained written record of its customers and
their financial portfolios which had been acquired by the
competitor bank and so the competitor bank should be
restrained even to contact those customers. It was reasoned,
that if the competitor bank without acquiring any information
as to with whom a particular person or company is banking,
can approach him and canvass about themselves, even after
acquiring information that a particular person of company is
banking with a bank is still entitled to approach him and
canvass about themselves and it is for the customers to decide
with which bank to bank. It was further held that creating a
CS(COMM) 89/2019 Page 23 of 31
database of the clients/customers and then claiming
confidentiality about it, will not permit creation of a monopoly
about such customers. It was yet further reasoned that without
impleading the customers in the suit, the competitor could not
be restrained from dealing with the customers. It was thus held
that details of customers are not trade secrets or property. The
argument, on the basis of copyright therein, was also negatived.
46. The High Court of Bombay again in Bombay Dyeing and
Manufacturing Co. Ltd. Vs. Mehar Karan Singh 2010 SCC
OnLine Bom 1243, relying on the judgments of the United
States of America, Court of Appeals, Tenth Circuit in Rivendell
Forest Products Ltd. Vs. Georgia Pacific Corporation and
Timothy L. Cornwell 31 USPQ 2d1472 and Kodekay
Electronics Inc. Vs. Mechanex Corp. 486 F. 2d 449 (10th Cir.
1973) and held that something which is known outside the
business or to those inside the business i.e. the employees and
for guarding which no steps have been taken and for developing
which no effort or money has been extended, cannot be a trade
secret. Accordingly, it was held that information relating to
„strategic business plans‟, „product mix‟, „square footage of
construction‟, „capital expenditure‟ or „revenue budgets‟ could
not be claimed to be of any confidential nature which no other
competitor would know. Relying on Star India Private Limited
supra it was held that a salesman leaving a company and heart
surgeon leaving a hospital cannot be prevented from
negotiating with the customers or performing a surgery on the
premise that they acquired the skill by experience and those
skills can be carried with the employee. It was yet further held
that though the defendant in that case, on amassing information
and knowledge with regard to the plaintiff‟s plan of operation,
could not be injuncted from disclosing those plans to the
competitor if he carried them in his head and the competitor in
the market, could not be taken to be driven by the defendant‟s
disclosure alone.
47. This Court, even in Stellar Information Technology
Private Ltd. Vs. Rakesh Kumar (2016) 234 DLT 114 held that
the names of the customers seeking data recovery services of
the plaintiff in that case were well known and in public domain
CS(COMM) 89/2019 Page 24 of 31
and the defendants could not be restrained from approaching
the customers only on the allegation that the defendants are
aware of the names of the plaintiff‟s customers. It was reasoned
that the plaintiff, in the name of confidentiality, was seeking a
restraint on trade. FAO(OS) (Com.) No.104/2016 preferred
thereagainst was dismissed on 11th November, 2016.
48. The plaintiff, on a reading of the plaint, is thus found to
have not made out a case for permanent injunction restraining
the defendants from divulging any trade secrets, research
process, financial, administrative and / or organizational
matters or any transactions or affairs of the plaintiff to anyone
else and / or for recovery of damages therefor for the reason of
the plaintiff having not pleaded that the defendants were privy
to any such trade secrets or other such matters."
19. I have also had occasion to consider the said aspect in the context of
claim on the basis of tort of unlawful interference in business by enticing
customers of the plaintiff to commit breach of contract with plaintiff,
recently in Modicare Ltd. Vs. Gautam Bali MANU/DE/3270/2019 and in
which it has inter alia been held as under:-
"29. Section 27 of the Contract Act makes void i.e.
unenforceable, every agreement by which anyone is restrained
from exercising a lawful profession, trade or business of any
kind. Thus, even if the defendants or any of them, under their
agreement with the plaintiff, had undertaken not to carry on or
be involved in any capacity in any business competing with the
business of the plaintiff, even after leaving employment
with/association of the plaintiff, the said agreement, owing to
Section 27 supra, would be void and unenforceable and the
plaintiff on the basis thereof could not have restrained any of
the defendants from carrying on any business or vocation, even
if the one which the defendant had agreed not to carry on. I
find it incongruous that the law, on the one hand would disable
a plaintiff from enforcing a contract where the defendant had
voluntarily agreed not to do something, by going to the extent of
declaring such contract void, but on the other hand, enable the
CS(COMM) 89/2019 Page 25 of 31
same plaintiff to the same relief under the law of tort. To hold
so, would make the law look like an ass.
30. Section 27, in Taprogge Gesellschaft MBH Vs. IAEC
India Ltd. AIR 1988 Bom 157, Sharp Business System Vs. The
Commissioner of Income Tax 2012 SCC OnLine Del 5639, and
Pepsi Foods Ltd. supra has been held to have been enacted as a
matter of public policy of India, and does not create any
personal right, which can be waived. If it is the public policy of
India that there can be no restraint on any one exercising a
lawful profession, trade or business, not even when such person
has voluntarily agreed not to, it belies logic that such public
policy would not apply when the mischief sought to be
prevented is sought to be practiced invoking law of torts. It is
not as if different reliefs are being claimed, in enforcement of
contract on the one hand and invoking the law of torts on the
other hand. The reliefs are the same. In my opinion, what is
not contractually enforceable is also not enforceable invoking
law of torts.
31. Inspite of specific query, whether there is equivalent in
UK, of Section 27 of the Contract Act, no response has come. I
find Supreme Court in Gujarat Bottling Co. Ltd. supra to have
held that while under the common law in England, restraints of
trade, whether general or partial, may be good if they are
reasonable or reasonably necessary with reference to public
policy or for protection of interest of covenantee, in India,
agreements in restraint of trade are governed by Section 27 and
the question of reasonableness of restraint is outside the
purview of Section 27. This explains, the law of tort of unlawful
interference in business, in UK. However the same, in my view,
has no place in India, at least in the context of present facts. I
find the Supreme Court, in Superintendence Company of India
(P) Ltd. supra, to have also held that principles of English Law
cannot be imported once the Parliament has codified the said
principles in the Contract Act; it is the language of the statute
which alone has to be considered to ascertain its true meaning
and scope.
CS(COMM) 89/2019 Page 26 of 31
32. Section 27, contained in a legislation of the year 1872, on
promulgation of the Constitution of India in the year 1950,
conferring the right to practice any profession or to carry on
any occupation, trade or business, the status of a Fundamental
Right, under Article 19(1)(g) thereof, today has a different
connotation. Article 19(6) only clarifies that nothing contained
in Clause (g) shall affect the operation of any existing law or
prevent the State from making any law, imposing in the interest
of general public, reasonable restrictions on the exercise of
right conferred by the said clause. Thus, restrictions, in the
interest of general public and if reasonable, to the Fundamental
Right to practice any profession or to carry on any occupation,
trade or business, can be imposed only by law. The law of tort
of unreasonable interference in carrying on business, in view of
Section 27 of the Contract Act in force since 1872, was not the
existing law within the meaning of Article 19 (6) of the
Constitution.
33. I have in Independent News Service Pvt. Ltd. Vs.
Sucherita Kukreti(2019) 257 DLT 426, in the context of Section
27 of the Contract Act held the right saved thereby to be a facet
of Article 21 of the Constitution of India. The judgment of the
Division Bench of Allahabad High Court of the year 1930, after
the right sought to be curtailed has been conferred the status of
a Fundament Right and a facet of Article 21 of the Constitution
of India, does not persuade me to hold that such Fundament
Right of the defendants can be subject to the law of tort of
enticement to commit breach of contract or of unlawful
interference with business.
34. After the coming into force of the Constitution of India,
the restriction if any on the fundamental right to carry on any
trade or business or to practice any profession can be imposed
only by making a law i.e. a law prohibiting unlawful
interference in business and enticing another to commit breach
of existing contractual obligations, and the constitutionality of
which law if challenged would be tested on the anvil of Article
19(6) of the Constitution of India.
CS(COMM) 89/2019 Page 27 of 31
35. Bholanath Shankar Das Vs. Lachmi Narain AIR 1931
All 83 referred to by counsel for plaintiff is found to be in a
different set of facts. The defendants therein, by forming an
association, were preventing the others traders in the market
from making supplies to the plaintiff therein of the goods which
they had agreed to sell to the plaintiff. It was found as a matter
of fact that the defendants were doing so to create a monopoly,
to hike up the price. It was the plea of the plaintiff therein that
the agreement forming an association for the said purpose
offended the provisions of Sections 23 and 27 of the Contract
Act. While negativing the said contention, it was observed that
the case of the plaintiff was founded upon tort and to which
Sections 23 and 27 had no application. Reliance placed by the
counsel for the plaintiff on the said judgement, without
reference to the facts thereof, is thus misconceived.
36. Else, I find a Full Bench of the High Court of Hyderabad
to have in Holloor Gopal Rao Vs War Nasi Shiv Ramiah AIR
1953 Hyd 1 held that a suit for establishing exclusive right to
„purohitgiri' in a village, axiomatically prohibiting others from
acting as purohits, could no longer continue after coming into
force on 26thJanuary, 1950 of the Constitution of India. It was
held that any order declaring the exclusive right of the plaintiff
would amount to laying a restraint upon others to carry on the
same profession in the village.
37. In fact, during the hearing on both days, I have also been
asking the senior counsel for the plaintiff, that even if the
argument of the senior counsel for the plaintiff were to be
accepted, where should the Court draw the line, between what
constitutes enticement to commit breach of contract and
unlawful interference in business on the one hand and
competition on the other hand. Any new entrant in the market,
to be able to create a niche for itself, in spite of the existing
players, has to compete with the existing players, by
approaching the same customers and the same cache of
employees who over the years have acquired expertise in that
particular field. When launching the same product/service, the
new entrant to the business cannot possibly create a new set of
customers for that product or service. Thus, the consumers to
CS(COMM) 89/2019 Page 28 of 31
be approached by the new entrant would be the same who were
earlier having contractual relationships with the existing
players. Similarly, a new entrant cannot possibly compete if
does not have the requisite expertise/finesse, required for
launching a particular product or service and to be able to
provide the same class or quality of service, has to necessarily
have with it, hands which have been making the subject product
and/or providing the said service in the past, may be under
contract with the existing players. In my view, it is practically
impossible to draw a line between such persons, on their own
approaching the new entrant, and the new entrant approaching
them. The process is quite complex and no precise rules can be
made with respect thereto. The Courts would not lay down the
law in the name of being a matter of evidence, in respect of
matters which are incapable of determination by Courts.
38. Attention of the senior counsel for the plaintiff has also
been drawn to the widespread business of headhunters and
employment brokers, who sometimes are approached by
employees/customers and sometimes by the new entrant and
also sometimes on their own make the two meet. I have
enquired from the senior counsel for the plaintiff, whether it
will make any difference, that the new entrant in the market
approaches a headhunter for hiring employees with the
specialty and instead of the new entrant, it is the headhunter
who approaches employees having contracts with existing
players. It is virtually impossible, even if evidence were
permitted to be led to draw a line, as to what caused the
employee to breach an existing contract of employment and
enter into a new contract i.e. whether it was on own violation or
on being enticed by the new entrant in the market.
39. No line which can be drawn in this respect has been
suggested.
40. A new entrant obviously has to offer better terms to
employees having expertise and having contract with other
players, to woo them to itself. I have wondered, whether
offering such better terms would amount to the tort of
enticement to commit breach of contract and unlawful
CS(COMM) 89/2019 Page 29 of 31
interference with the business of an existing player. Again no
clarity has emerged.
41. I thus hold that a claim founded on unlawful interference
with business or of enticement to commit a breach of contract
with the plaintiff is not enforceable in a court of law, neither
contractually nor invoking the law of tort. Such a claim is thus
not required to be put to trial."
20. Once, it is found that as per law declared in Navigators Logistics Ltd.
supra and Modicare Ltd. supra the suit is not maintainable, the same ought
not to consume the time of the Court and is liable to be summarily
dismissed, if not under Order VII Rule 11 of the CPC, under Order XIII-A
of the CPC as applicable to commercial suits which entitles the Court to
summarily dismiss the suit if finds no real prospect of the plaintiff
succeeding therein. The suits are not to be kept pending, with dates after
dates given, to keep the Advocates and the Court busy.
21. Opportunity has been given to the counsel for the plaintiff to make
any other argument, if so desires.
22. Mr. Lokesh Kr. Mishra, Advocate for the plaintiff states that he wants
to withdraw the suit.
23. The counsel for the defendants states that though the plaintiff has
withdrawn the suit, but the copyright claimed was only in the list of clients
and in which no copyright subsists in terms of Navigators Logistics Ltd.
supra.
CS(COMM) 89/2019 Page 30 of 31
24. The suit is dismissed as withdrawn.
25. Though, the plaintiff is liable for costs to the defendants but counsel
for the plaintiff states that the plaintiff has already incurred costs in filing
the suit. In the hope that the parties will not litigate further, no costs.
RAJIV SAHAI ENDLAW, J.
OCTOBER 14, 2019 'ak' CS(COMM) 89/2019 Page 31 of 31