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Parviom Technologies Private Limited vs Karthik Devraj And Others on 16 September, 2022

Author: Navin Chawla

Bench: Navin Chawla

                    $~15
                    *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +     CS(COMM) 644/2022
                          PARVIOM TECHNOLOGIES PRIVATE LIMITED
                                                                                 ..... Plaintiff
                                          Through: Ms.Shwetasree Majumdar, Mr.Prithvi
                                                       Singh & Ms.Archita Nigam, Advs.
                                          versus
                          KARTHIK DEVRAJ AND OTHERS
                                                                             ..... Defendant
                                          Through: None.
                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                                 ORDER

                          %                      16.09.2022
                    I.A. 15222/2022 (Exemption)
                    1.       Allowed, subject to all just exceptions.
                    I.A. 15218/2022

2. This application has been filed seeking exemption from instituting pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.

3. Having perused the contents of the application, the same is allowed.

4. This is an application seeking exemption from making advance service of the suit paper book to the defendants.

5. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making advance service of the suit paper book to the defendants.

6. This is an application filed by the plaintiff seeking extension of time to deposit the Court Fee.

7. For the reasons stated in the application, the same is allowed and the plaintiff is directed to deposit the balance court fee within a period of three working days.

8. The application is disposed of.

9. This is an application filed on behalf of the plaintiff seeking leave to file additional documents, which are not in the power, possession, control or custody of the plaintiff at the moment.

10. The plaintiff may file the additional documents strictly in accordance with the provisions of the law.

11. The application stands disposed of.

CS(COMM) 644/2022

12. Let the plaint be registered as a suit.

13. Issue summons to the defendants, to be served through all permitted modes, including electronically, returnable on 15th December, 2022, before the learned Joint Registrar (Judicial).

14. The summons to the defendant(s) shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendant(s) shall also file the affidavit(s) of admission/denial of the documents of the plaintiffs, without which the written statement(s) shall not be taken on record.

15. Liberty is given to the plaintiff to file the replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiff, the affidavit(s) of admission/denial of documents of the defendant(s) be filed by the plaintiff, Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

16. Issue Notice.

17. On the plaintiff taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 15th December, 2022 before the learned Joint Registrar (Judicial).

18. Let reply(ies) to the application be filed by the defendants within a period of four weeks of receipt of the notice. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.

19. It is the case of the plaintiff that the plaintiff, in November 2019, launched its Radio Frequency Identification (in short, 'RFID') controlled access management through boom barriers (hereinafter referred to as the 'plaintiff's boom barrier system'). The said system essentially contains three main components, that is, i) the RFID Reader; ii) the control panel which contains the Printed Circuit Board (in short, 'PCB'); and iii) the software which runs the entire access management system.

20. It is asserted that one of the most critical components necessary for the functioning of the plaintiff's boom barrier system is its 'PCB' and the proprietary software source code for the operation of the same.

21. It is asserted that the defendant no. 1 joined the plaintiff's employment on 25.05.2020 as a Firmware Engineer, and was later promoted to Senior Firmware Engineer on 03.07.2022. His responsibilities in the plaintiff's company included but were not limited to research and development, developing circuit designing of PCBs, outsourcing fabrication Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 and manufacture of PCBs, software development and vendor empanelment for any hardware manufacturing or assembly. In the course of his employment, the defendant no. 1 had access to the copyrighted software source code, other confidential information, and also trade secrets of the plaintiff, details whereof are given in paragraph 13 of the plaint.

22. On 25.08.2022, Mr. Akshay Goel from Hatch N Hack Solutions Pvt Ltd (Hatch N Hack), who is one of the vendors responsible for manufacturing PCBs for the plaintiff as also assembling its complete control panels, informed the plaintiff about an e-mail received by him from the defendant no. 1 seeking quotes for manufacturing sensors and modules which are critical components of the plaintiff's system. It was found that the follow up communications were marked to various employees of the defendant no. 2, which indicated that the said orders were for on-going projects of the defendant no. 2. When confronted, the defendant no. 1 accepted that he had done work with the defendant no. 2, however, claimed that he had not shared any confidential information or trade secrets with them. On a forensic analysis of the laptop and mobile phone of the defendant no. 1, it was found that the defendant no. 1 had indeed shared substantial confidential information and documents of the plaintiff- company, including the copyrighted software source code with the defendant no. 2. The learned counsel for the plaintiff has drawn my attention to various documents filed with the plaint in support of this assertion.

23. The learned counsel for the plaintiff further submits that, in fact, the defendant no. 2 is sourcing its PCBs from the defendant no. 3; with whom the plaintiff has a Non-Disclosure Agreement. In spite of such Agreement, the defendant no. 3 appears to have shared the PCBs drawing and its Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 manufacturing details with the defendant no. 2 and is, in fact, manufacturing the same for defendant no. 2.

24. The defendant no. 4 is stated to be a software consultant who is helping the defendant nos. 1 to 3 to use the proprietary information of the plaintiff's design for nefarious purposes.

25. Having considered the contents of the plaint, the documents filed therewith, as also having heard the learned counsel for the plaintiff, in my opinion, that the plaintiff has been able to make out a good prima facie case in its favour. The documents prima facie show that while being in employment with the plaintiff, the defendant no. 1 has shared information to which the plaintiff claims proprietary rights with the defendant no. 2, including its software source code and proprietary data base. The defendant no. 2 is a competitor of the plaintiff.

26. From the documents at least prima facie, it appears that defendant no.1 has shared confidential information of the plaintiff with the defendant no.2, while being in employment of plaintiff. The balance of convenience is, therefore, also in favour of the plaintiff and against the defendants as they cannot be allowed to use proprietary information of the plaintiff which has been clandestinely obtained by them. The plaintiff is likely to suffer grave irreparable injury in case an ad-interim injunction prayed for is not granted as the plaintiff and the defendant no. 2 are competing in the same market.

27. In view of the above, there shall be an ad-interim injunction in favour of the plaintiff and against the defendants in terms of prayers made in paragraph 13(a) to (c) of the present application till further orders.

28. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of one week from today.

I.A. 15217/2022 (Appointment of LC)

29. By this application, the plaintiff prays for an appointment of a Local Commissioner to visit the premises of the defendant no. 2 at its office at 1005, 10th Floor JMD Megapolis, Sohna Road, Sector-48, Gurugram, Haryana-122018 to inter alia inspect all computer system on the premises of the defendant no. 2 and any other premises as may be disclosed by defendant no. 2, as belonging to it, to identify the presence of the plaintiff's source code, firmware and other confidential information and trade secrets.

30. For reasons stated hereinabove, I am of the opinion that the plaintiff has been able to make out a case for appointment of a Local Commissioner for carrying out the following mandate:-

a. Inspect all computer systems on the premises of the defendant no. 2 and any other premises disclosed by the defendant no. 2, which belong to them, to identify the presence of the plaintiff's software source code, firmware and other confidential information, trade secrets and to make mirror images if the same are found. Pursuant to the same, the Local Commissioner shall delete/ format all of the said data from the defendant no.2's systems.

b. Specifically check the computer systems of Vijay Garg, Ashish Saini, Vishal Mohan, Alok Kumar, Rajpal Rawat, Aditi Kharbanda and Kavita Rawat to identify the presence of the plaintiff's software source code, firmware and other confidential information, trade secrets and to make mirror images, if the same are found. Pursuant to the same, the Local Commissioner shall delete/ format all of the said data from the systems of the abovementioned individuals. c. Obtain access to the local and/or cloud server in which the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 defendant no. 2 stores its data and to identify the presence of the the plaintiff's software source code, firmware and other confidential information, trade secrets and to make mirror images, if the same are found. Pursuant to the same, the Local Commissioner shall delete/ format all of the said data from the defendant no.2's systems. d. Check the computer systems and network servers of the defendant no. 2 to find out the host having the IP addresses - 192.168.0.104 and 192.168.0.105.

e. Inspect the control panels available at the defendant no. 2's premises to check whether they are using the products designs of the plaintiff and to inspect the SD card being used therein for any software code belonging to the plaintiff. In case these are found, then the control panels and SD cards may be seized, inventorised and handed over on superdari to the representatives of the defendant no.2. f. Inspect the RFID readers, the RFID tags and other hardware that may be available at the premises of the defendant No. 2 to check if the plaintiff's firmware has been used to operate same. g. Check the records of the defendant No. 2 pertaining to the 4 tenders - Brookefield Properties, Emaar Emerald Housing, AIPL Joy Central and AIPL Business Club and/or any other tenders won by the defendant no. 2, which involves the plaintiff's source code, firmware and other confidential information, trade secrets and to make copies of all such information/ data for submission before this Court. In the event the records are maintained electronically, the Local Commissioner shall be empowered to access the systems where such records are made and make copies of the same. If said electronic Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 records are found to be password-protected, the defendant shall supply the password to permit the Local Commissioner to carry out the mandate of this Court.

h. Take the details of the defendant no. 4 from the defendant no. 2 and direct him to come to the premises of the defendant no. 2 along with all his computer systems. And to inspect the computer systems of the defendant no. 4 to identify the presence of the plaintiff's software source code, firmware and other confidential information, trade secrets and to make mirror images if the same are found. Pursuant to the same, the Local Commissioner shall delete all of the said data from the defendant no.4's systems.

i. Take assistance of one of the plaintiff's representatives, who may be allowed to be present during the local commission proceedings to assist the Local Commissioner, and a third-party computer forensic expert in identifying the plaintiff's data.

j. Install and run recovery software to check if the plaintiff's software source code, firmware and other confidential information, trade secrets were present in the computer systems being checked. k. Seek police assistance from the SHO of the police station under whose jurisdiction the above address falls and the said SHO is directed to provide prompt assistance and ensure confidentiality of the said order.

l. To break open locks, if necessary, in order to implement the orders of this Court.

m. To take photographs of and/or video record the proceedings with the assistance of the plaintiff's representative.

31. I hereby appoint Ms. Divya Sharma, Adv., Address: B-20, Nizamuddin East, New Delhi-110013, Mob. No. 9216304161 as a Local Commissioner to carry out the above mandate. The fee of the Local Commissioner is fixed as Rs. 2,00,000/- (Rupees Two Lakh only), apart from the out-of-pocket expenses, to be paid by the plaintiff at the first instance.

32. The application is allowed.

33. This order may not be uploaded on the website of the Delhi High Court for a period of ten days.

34. Copy of this order be given dasti under signature of the Court Master to the learned counsel for the plaintiff.

NAVIN CHAWLA, J SEPTEMBER 16, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17