Madras High Court
Techindia Infoway Private Limited vs Echoread Healthcare Private Limited on 20 January, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
C.S.No.17 of 2020
(Comm.Suit)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.01.2022
Coram:
THE HONOURABLE MR JUSTICE N.ANAND VEKATESH
Civil Suit No.17 of 2020
(Comm.Suit)
Techindia Infoway Private Limited,
with its office at No.4/40, 2nd Floor, II Street,
South Thirumalai Nagar, Villivakam, Chennai 600 049
represented by its Authorised Signatory, C.G.Subramaniam.
.. Plaintiff
.vs.
1. EchoRead Healthcare Private Limited,
With its registered office at
No.70/21, South Street, Karumandapam,
Tiruchirappalli 620 001
Represented by its Directors.
2. Vikna Prakash.
3. Vivehananth Ramasamy.
4. Jaisankar Venkatachalam.
5. Pandiyarajan Elumalai.
6. Seetha Lakshmi.
7. Sornam.M.
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8. Mohana Jayaraman.
9. Ananthi Gothandabani.
10. Mala Arumugam.
11. Karthikeyan Mummorthy.
12. S.R.Manjunath.
13. Vijayamaran Balraj.
14. Regha V.
15. Sakthivelu G.
16. Queen Elizabeth.
17. Saranya V.
18. M.Tamilselvan.
19. Anandha Raj.
20. Kavitha V.
..Defendants
Prayer: Civil Suit has been filed under Order IV Rule 1 O.S.Rules r/w Sections
2(1)(c)(xvii) & Section 7 of Commercial Courts Act, 2015 and 55 and 62 of the
Copyrights Act, 1957, pleased to grant a judgment and decree on the following
terms:-
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a) Permanent injunction restraining the defendants, directors, shareholders,
men, agents, partners, associates, officers, representatives, servants and all other
persons acting on defendants' behalf from in any manner infringing the plaintiff's
copyright in plaintiff's EKG Training Material, NDA Employment Agreement,
Employee Handbook Clinical Process, EKG Training Syllabus, directly or
indirectly;
b) Permanent injunction restraining the defendants, directors, shareholders,
men, agents, partners, associates, officers, representatives, servants and all other
persons acting on defendants' behalf from in any manner using, copying,
circulating, storing, for any purpose, the plaintiff's EKG Training Material, NDA
Employment Agreement, Employee Handbook Clinical Process, EKG Training
Syllabus, directly or indirectly;
c) Direction to the defendants, directors, shareholders, men, agents,
partners, associates, officers, representatives, servants and all other persons
acting on defendants' behalf from in any manner, directly or indirectly, to deliver
to plaintiff all copies of plaintiff's EKG Training Material, NDA Employment
Agreement, Employee Handbook Clinical Process, EKG Training Syllabus;
d) Direction to the defendants to render accounts of profits of the
defendants in favour of the plaintiff to examine and ascertain the profits made by
the defendant, and thereafter on enquiry final decree by passed and or an order
for rendition of accounts of profits made by the defendant by using the plaintiff's
EKG Training Material, NDA Employment Agreement, Employee Handbook
Clinical Process, EKG Training Syllabus;
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e) Declare the plaintiff to be the author and to have the exclusive copyright
in the plaintiff's work viz., EKG Training Material, NDA Employment
Agreement, Employee Handbook Clinical Process, EKG Training Syllabus;
f) Award damages of Rs.2,00,00,000 (Rupees Two Crore Only);
f) An order for the costs of the proceedings;
For Plaintiff :Mr.Vineet Subramani
-----
JUDGMENT
The plaintiff has filed the above suit against the defendants seeking for the relief of permanent injunction and for other consequential reliefs. The case of the plaintiff is that they are in the business of providing remote clinical diagnostic services to hospitals. The plaintiff also has various branches at Chennai, Puducherry and Tiruchirapalli. The persons employed by the plaintiff are required to become Certified Cardiographic Technician (CCT) and/or Certified Rhythm Analysis Technician (CRAT), both certifications provided by the Cardiovascular Credentialing International (CCI), United State of America. These certifications are given to a few candidates every year, who are required to pass https://www.mhc.tn.gov.in/judis 4/16 C.S.No.17 of 2020 (Comm.Suit) an examination after preparing themselves by studying relevant materials and text books. The plaintiff is investing significantly in man power and financial resources in preparing and updating the study materials and providing proper training modules/programs. For this purpose, the plaintiff has developed a database over a period of time. The plaintiff also imparts theory and practical classes to the employees, who undergo these certifications to obtain CCI certification. The plaintiff is also claiming for copyright for the materials and database which they have created on their own.
2. The plaintiff came to know that some of its employees who have undergone these certification course seems to have committed breach of confidentiality and shared the materials with the first defendant which was founded by the second defendant. According to the plaintiff, every one of the materials that was used by the first defendant was an exact word-to-word copy of the plaintiff's materials. The defendants 2 to 20 were all previous employees of the plaintiff-company, who after exiting from the plaintiff-company seems to have shared the materials obtained from the plaintiff-company and the same was put to use by the first defendant. Aggrieved by the same, the present suit was filed before this Court.
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3. During the pendency of the suit, the defendants 7, 8, 9, 10, 15, 17, 18 and 19 entered into a memo of compromise with the plaintiff and a decree was passed in terms of memo of compromise on 12.08.2021. Insofar as the defendants 4, 5, 6, 11, 12, 13 and 20 are concerned, even though they were served, they chose not to contest the present suit and they were all set ex-parte by an order dated 13.12.2021. Insofar as the defendants 1, 2, 3, 14 and 16 are concerned, they did not file any written statement and this Court by an order dated 08.09.2021 forfeited their right to file the written statement. Hence, effectively none of the defendants are contesting the suit and accordingly, this Court has to proceed further to decide the suit based on the averments made in the plaint and the documents relied upon by the plaintiff.
4. Even during pendency of the suit, the plaintiff had the advantage of an order of interim injunction in their favour and it was extended until further orders by an order dated 12.07.2021.
5. During the pendency of the suit, an application was filed by the plaintiff in A.No.180 of 2020 for appointment of an Advocate Commissioner in order to conduct a search in the premises belonging to the first defendant and to seize the incriminating materials that are being put to use by the first defendant. This https://www.mhc.tn.gov.in/judis 6/16 C.S.No.17 of 2020 (Comm.Suit) Court by an order dated 21.01.2020 appointed an Advocate Commissioner. The Advocate Commissioner filed a report dated 08.02.2020. It will be relevant to extract the material portions from the report hereunder:-
'9. When enquired about the files available on their computers, Mr.Vivehananth showed us a folder on the desktop in Device 1 by name 'ER' containing about 50 files. He also copied the folder with the files into a pen drive I handed over to him.
10. When a specific query was raised about the word file 'EKG training material, Mr.Vivehananth, said that he had prepared the same on instructions from Mr.Vikna Prakash for a client. He said he had compiled it by copying the data and information from various sources available in the internet including Wikipedia.
11. With respect to file named 'Anatomy and Physiology of Heart' found in the same folder, he said he had prepared the same from data available on the internet and he simply added the Echoread Logo to prepare the document.
12. With respect to the file by name CCT Tech which contained a list of 15 personnel he explained that they were people who were qualified for CCI Certification and list was also available on the internet of all persons qualified by CCI. He explained that there was no specific reason for selecting the fifteen persons but the list was prepared so that it can be sent to a client.
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13. On being shown copies of documents filed by the applicant/plaintiff in Typed Set Volume III, he identified doc no.1 'Basic Anatomy of Heart' and doc.4 'ECG Technician Training Syllabus-CCT' specially saying that he had prepared the same by downloading copies available on internet and adding Echo Read logo. With respect to Doc 2 'Employment Agreement' and Doc 3 'Employee Handbook' he said he was not familiar with the same and only Mr.Vikna Prakash would know about them.
14. In order to protect and produce the material found in the said computer, on my request he also emailed a link on google drive to my email address and also certain files separately as indentified from the computer. Copies of the email received and the print out of the attachments therefrom are enclosed. After taking a few photos of the location we left the premises around 12.45. The acknowledgment for receiving copy of the warrant is also enclosed. The videos taken during the inspection are also filed in a Compact Disc (CD) and the pendrive containing the "ER Folder" is also submitted before this Hon'ble Court.'
6. This Court took into consideration the report of the Advocate Commissioner and prima facie found that the incriminating materials were found in the premises of the first defendant and hence, the interim injunction was granted in favour of the plaintiff by an order dated 13.02.2020. This order was subsequently made absolute on 12.07.2021.
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7. When the matter came up for hearing today, this Court on carefully going through the plaint and the documents relied upon by the plaintiff and also of the fact that none of the defendants chose to defend the suit, decided to proceed further to deal with the suit on merits by dispensing with the oral evidence and directed the documents relied upon by the plaintiff to be marked as Ex.P.1 to Ex.P.39. This Court felt that the claim made by the plaintiff can be decided based on the documents relied upon by the plaintiff and the report submitted by the Advocate Commissioner.
8. Heard Mr.Vineet Subramani, the learned counsel for the plaintiff and carefully perused the averments in the plaint and the documents marked as Ex.P.1 to Ex.P.39.
9. The claim made by the plaintiff to the effect that they are the creators of the study materials for the certification course, is clearly borne out by the documents marked as Ex.P.1 to Ex.P.11. It is also seen that the defendants 2 to 20 were all the previous employees of the plaintiff-company and the same is borne out by Ex.P.13 to Ex.P.31. A careful scrutiny of Ex.P.12, Ex.P.32 to Ex.P.37 shows that the entire study material of the plaintiff has been lifted and https://www.mhc.tn.gov.in/judis 9/16 C.S.No.17 of 2020 (Comm.Suit) put to use. This fact is substantiated by the report of the Advocate Commissioner and the materials filed along with the report. It is quite apparent that the former employees who underwent training and were working with the plaintiff-company, have completely breached the confidentiality and the first defendant wanted to unjustly enrich itself. Some of the defendants after realizing the mistake, chose to enter into compromise and the other defendants chose not to contest the suit. Probably the defendants became aware that there is nothing much to contest in this case after having been caught red-handed with the materials that belonged to the plaintiff-company.
10.In view of the above discussion, this Court has no hesitation to pass a judgment and decree in favour of the plaintiff-company. Insofar as the relief of damages claimed by the plainitff-company, there is no material to substantiate the claim. The damages can be assessed only after the first defendant furnishes the accounts. If on going through the accounts, this Court finds that the first defendant has enriched itself by misusing the materials belonging to the plaintiff, the same can be taken into consideration and damages can be fixed at that point of time when the final decree is passed with regard to the relief of rendition of accounts.
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11. In the result, this Suit is allowed and the following judgment and decree is passed as against the defendants 1 to 6, 11 to 14, 16 and 20:-
(a) Granting permanent injunction to restrain the defendants, directors, shareholders, men, agents, partners, associates, officers, representatives, servants and all other persons acting on defendants' behalf from in any manner infringing the plaintiff's copyright in plaintiff's EKG Training Material, NDA Employment Agreement, Employee Handbook Clinical Process, EKG Training Syllabus, directly or indirectly;
(b) Granting permanent injunction to restrain the defendants, directors, shareholders, men, agents, partners, associates, officers, representatives, servants and all other persons acting on defendants' behalf from in any manner using, copying, circulating, storing, for any purpose, the plaintiff's EKG Training Material, NDA Employment Agreement, Employee Handbook Clinical Process, EKG Training Syllabus, directly or indirectly;
(c) Directing the defendants, directors, shareholders, men, agents, partners, associates, officers, representatives, servants and all other persons acting on defendants' behalf from in any manner, directly or indirectly, to deliver to plaintiff all copies of plaintiff's https://www.mhc.tn.gov.in/judis 11/16 C.S.No.17 of 2020 (Comm.Suit) EKG Training Material, NDA Employment Agreement, Employee Handbook Clinical Process, EKG Training Syllabus;
(d) There shall be a preliminary decree directing the first and second defendants to render the accounts of profit made by the defendants by using the plaintiff's EKG Training Material, NDA Employment Agreement, Employee Handbook Clinical Process, EKG Training Syllabus;
(e) Declaring the plaintiff as the author and to give the exclusive copyright in the plaintiff's work viz., EKG Training Material, NDA Employment Agreement, Employee Handbook Clinical Process, EKG Training Syllabus;
(f) Directing the first and second defendants to pay cost of a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) towards costs to the plaintiff.
12. This Suit is allowed in the aforesaid terms.
20.01.2022 nsa Internet: Yes https://www.mhc.tn.gov.in/judis 12/16 C.S.No.17 of 2020 (Comm.Suit) Index : Yes/No List of Witness examined on the side of the Plaintiff:- --- List of Witness examined on the side of the Defendant:- --- List of the Exhibits marked on the side of the Plaintiff:-
S.No Date Particulars Party Remarks
1. - Plaintiff ISO Certificates Plaintiff Photocopy
2. - Plaintiff HIPAA Certificate Plaintiff Photocopy
3. - Plaintiff GDPR Certificate Plaintiff Photocopy
4. - Publications regarding Plaintiff Plaintiff Printout
5. - About CCI Plaintiff Printout
6. - CCI Certificates Data Plaintiff Printout
7. - Plaintiff's EKG Training Material. Plaintiff Printout
8. - Plaintiff's NDA Employment Plaintiff Printout
Agreement
9. - Plaintiff's Employee Handbook Plaintiff Printout
Clinical Process
10. - Plaintiff's EKG Training Syllabus Plaintiff Printout
11. - About ISO Certification Plaintiff Printout
12. - D1 Master Date from MCA Website Plaintiff Printout
13. 01.05.2010 D2 Employment Documents Plaintiff Photocopy
14. 10.07.2010 D3 Employment Documents Plaintiff Photocopy
15. 21.12.2011 D4 Employment Documents
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Plaintiff Photocopy
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S.No Date Particulars Party Remarks
16. 24.08.2012 D5 Employment Documents Plaintiff Photocopy
17. 30.06.2010 D6 Employment Documents Plaintiff Photocopy
18. 15.07.2010 D7 Employment Documents Plaintiff Photocopy
19. 09.06.2012 D8 Employment Documents Plaintiff Photocopy
20. 01.12.2010 D9 Employment Documents Plaintiff Photocopy
21. 11.06.2012 D10 Employment Documents Plaintiff Photocopy
22. 28.08.2012 D11 Employment Documents Plaintiff Photocopy
23. 02.02.2012 D12 Employment Documents Plaintiff Photocopy
24. 01.06.2012 D13 Employment Documents Plaintiff Photocopy
25. 08.06.2015 D14 Employment Documents Plaintiff Photocopy
26. 11.05.2015 D15 Employment Documents Plaintiff Photocopy
27. 25.02.2013 D16 Employment Documents Plaintiff Photocopy
28. 05.08.2014 D17 Employment Documents Plaintiff Photocopy
29. 09.03.2015 D18 Employment Documents Plaintiff Photocopy
30. 01.06.2015 D19 Employment Documents Plaintiff Photocopy
31. 01.06.2016 D20 Employment Documents Plaintiff Photocopy
32. - Defendants' Emails Defendant Printout
33. - Defendants' Training Syllabus Defendant Printout
34. - Defendants' Employment Agreement Defendant Printout
35. - Defendants' Employee Handbook Defendant Printout
36. - Defendants' EKG Training Defendant Printout Curriculum Syllabus
37. - Defendant Profile Defendant Printout
38. s.65B Affidavit Plaintiff Original
39. Board Resolution Plaintiff Original List of the Exhibits marked on the side of the Defendants:- -- https://www.mhc.tn.gov.in/judis 14/16 C.S.No.17 of 2020 (Comm.Suit) To The Sub-Assistant Registrar, Original Side, High Court, Madras.
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