Bombay High Court
Consulting Engineers Corporation vs Hcl Technologies Ltd on 20 February, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
23-ial-36789-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.36789 OF 2022
VISHAL IN
SUBHASH SUIT NO.2678 OF 2007
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR Consulting Engineers Corporation ...Applicant/
Date: 2023.02.23
11:09:21 +0530 Plaintiff
vs.
HCL Technologies Limited and Another ...Defendants
Mr. Sunny Shah i/b. Bhandary & Bhandary, for the Applicant.
Mr. Lalan Gupta a/w. Ms. Atika Vaz, Ms. Anumeha Karnatak i/b.
Shardul Amarchand Mangaldas & Co., for Defendant No. 1.
CORAM : N. J. JAMADAR, J.
DATE : FEBRUARY 20, 2023
P.C.:
1. The applicant/plaintiff has preferred this application seeking
a direction to defendant No. 1 to answer the interrogatories set out
in Exhibit A and to make disclosure on oath of the documents which
are or have been in possession or power of defendant No. 1 relating
to the matter in question and also direct production of those
documents mentioned in Exhibit B, appended to the application.
2. The applicant has instituted the instant suit for recovery of
damages from defendant No. 1 due to breach of Non Disclosure
Agreement (NDA) dated 13th February, 2004. The plaintiff asserts
the defendant No. 1 was engaged by Structureworks LLC to develop
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a software for structural design. Defendant No. 1 did not possess
the domain knowledge and expertise to execute the said task.
Defendant No. 1 approached the plaintiff for guidance and
assistance. Before commencing the work, according to the plaintiff,
the plaintiff and defendant No. 1 executed NDA.
3. It was, inter alia, agreed that defendant No. 1 would not
recruit four key employees, including defendant No. 2, who were on
the payroll of the plaintiff No. 1. The plaintiff alleges in flagrant
violation of the said contractual obligation, on 21 st May, 2004, the
defendant No. 1 recruited defendant No. 2, one of the named
employees of the plaintiff. Defendant No. 1 surreptitiously executed
the task for Structureworks LLC, without plaintiff's involvement, in
complete breach of the NDA. This caused huge monetary loss to the
plaintiff including opportunity cost. Thus, the suit for damages.
4. After the plaintiff closed its evidence, defendant No. 1
examined a witness Ms. Pallavi Pathak (D.W.1). The plaintiff cross
examined D.W. 1. However, D.W.1 declined to answer many
questions put to her during the cross examination on the pretext
that she was no longer in the employment of defendant No. 1 and
had no access to the record. Inviting the attention of the Court to
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the answers given to the questions, extracted in the application,
and the contentions of the defendant No. 1 in the written statement
especially paragraphs 8(b) and 8(h), the plaintiff asserts, it is
constrained to seek discovery by interrogatories form the
defendant No. 1 and also the production of the documents which are
solely in the custody of defendant No. 1. The interrogatories which
the plaintiff intends to call upon the defendant No. 1 to answer are
enumerated in Annexure A and the documents of which the
plaintiff seeks production are enumerated in Exhibit B.
5. The defendant No. 1 resisted the application by filing an
affidavit in reply. The application is stated to be filed with an oblique
motive to further prolong the suit. The proposed interrogatories are
alleged to be wholly irrelevant to the facts in issue and betray an
intent to indulge in a fishing inquiry. As the defendant No. 1 had
categorically stated in the written statement that the defendant No.
1 had entered into an agreement with Structureworks LLC even
before the execution of the alleged Non Disclosure Agreement
(Exhibit B), there is no justifiable reason to seek documents
pertaining to the said transaction. In any event, those documents
having been executed more than 20 years ago are not in the
custody of defendant No. 1 and in accordance with the terms of the
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policy of defendant No. 1, those documents have been destroyed.
6. I have heard Mr. Sunny Shah, learned counsel for the
applicant, and Mr. Lalan Gupta, learned counsel for defendant No. 1.
7. Mr. Shah, the learned counsel for the applicant made an
endevour to impress upon the Court that though there is apparent
delay in seeking answers to the interrogatories and discovery and
production of documents, yet the Court is not precluded from
calling upon the defendant No. 1 to answer the interrogatories and
produce the documents as the answers to the interrogatories and
the documents, the production of which is sought, are necessary for
the determination of real question in controversy. Mr. Shah would
urge that the answers to the interrogatories and the documents are
of material significance in determining the quantum of damages to
which the plaintiff would be entitled to, for breach of NDA. Taking
the Court through the manner in which D.W.1 answered the
questions during the course of cross examination, Mr. Shah
submitted that the plaintiff has no other option but to seek answers
to the interrogatories and production of the documents.
8. In opposition to this, Mr. Gupta, learned counsel for defendant
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No. 1 pointed that the defendant No.1 had categorically asserted in
the written statement that the agreement which the defendant No.
2 had entered into with Structureworks LLC was much before the
execution of the alleged NDA. Laying emphasis on the nature of the
interrogatories and the stage of the proceeding, Mr. Gupta
submitted that the application is preferred with a view to further
delay the disposal of the suit.
9. The fate of the suit, apart from the issue of limitation,
primarily hinges upon the determination of issue No. 3 namely
"whether the plaintiff proves that defendant No. 1 committed any
breach of the Non Disclosure Agreement dated 13 th February, 2004
entered into between the plaintiff and defendant No.1". In the event,
the issue is answered in the affirmative, the issue of damages to be
awarded as claimed by the plaintiff or otherwise would warrant
adjudication.
10. Keeping in view the aforesaid nature of the suit, the prayers
in the application are required to be considered. Indeed the stage of
the suit bears upon the determination of the instant application. It
is preferred post completion of cross examination of D.W.1. It is
imperative to note that agreement, purported to have been
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executed between defendant No. 1 and Structureworks LLC, in or
about 2003, was specifically referred to in paragraph 8(b) of the
written statement. It is with reference to this agreement the D.W.1
was sought to be confronted during the course of the cross
examination and production of documents in connection therewith
was sought. Thus, the basis of the application that on account of the
reluctance and/or inability of D.W.1 to answer the questions put to
her during the course of cross examination, necessitated filing of
the application does not merit countenance as the existence of such
agreement purported to have been executed between defendant No.
1 and Structureworks LLC was specifically pleaded in the written
statement, itself.
11. The submission that answers to the interrogatories and the
production of documents are necessary for determination of the
quantum of damages, also does not carry much substance. The onus
clearly rests on the plaintiff to establish that it had suffered
damages. In any event, it seems that the time lag of almost 20 years
has taken its toll on the claim of the applicant. The contention on
behalf of the defendant No. 1 that it had destroyed the documents in
adherence to its policy of 'Retention and Destruction of Documents
(Exhibit G)' appended to affidavit in reply and therefore not in
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custody thereof cannot be said to be untenable.
12. The application is also vulnerable on account of being in the
nature of a roving inquiry. The interrogatories do not seem to bear
upon the principal issue adverted to above. The information is, inter
alia, sought in relation to the projects executed by defendant No. 1
in relation to Precast industry apart from Structureworks LLC, and
the total value of those projects. Likewise, the plaintiff seeks the
production of documents/ contracts executed by defendant No. 1
with other organizations in relation to developing of software
relating to Precast industry.
13. For the foregoing reasons, I am persuaded to hold that the
prayers in the application do not deserve to be entertained.
Hence, the following order.
ORDER
Application stands rejected.
(N. J. JAMADAR, J.) Vishal Parekar, P.A. ...7