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Eicore Technologies Pvt. Ltd. & Ors vs Eexpedise Technologies Pvt. Ltd. & Ors on 25 October, 2021

Author: Sanjeev Narula

Bench: Sanjeev Narula

                          $~11
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CS(COMM) 1146/2018
                                EICORE TECHNOLOGIES PVT. LTD. & ORS.                              ..... Plaintiffs
                                                      Through:       Mr. Nakul Dewan, Senior Advocate
                                                                     with Mr. Saurav Agrawal, Mr.
                                                                     Debarshi Dutta, Ms. Manvi Adlakha,
                                                                     Ms. Rudrakshi Joshi, Ms. Divya
                                                                     Hirawat and Mr. Rohan Naik,
                                                                     Advocates.
                                                      versus

                               EEXPEDISE TECHNOLOGIES PVT. LTD. & ORS. ..... Defendants
                                              Through: Mr. Anil Sapra, Senior Advocate
                                                       with Ms. Bitika Sharma, Mr. Luv
                                                       Virmani and Ms. Vrinda Pathak,
                                                       Advocates for Defendants No. 1 to 7
                                                       & 12 to 19.
                               CORAM:
                               HON'BLE MR. JUSTICE SANJEEV NARULA
                                        ORDER

                          %             25.10.2021
                          [VIA VIDEO CONFERENCING]

I.A. No. 6886/2021 (u/Order XXXIX Rule 2A r/w Section 151 of CPC, 1908, for wilful violation and deliberate disobedience by the Defendants of the Order dated 28th September, 2018)

1. Plaintiff alleges that the Defendants have committed a contempt of the Order dated 28th September, 2018 and, inter-alia, seeks action of attachment of properties and civil detention.

2. Mr. Nakul Dewan, Senior Counsel for the Applicants/ Plaintiffs argues that the Defendants had specifically given an undertaking to the Court as recorded in para 9 of the said order which reads as under: -

"9. At this stage, learned senior counsel for the plaintiff submits that Signature Not Verified Digitally Signed By:SAPNA SETHI CS(COMM) 1146/2018 Page 1 of 3 Signing Date:28.10.2021 11:00 this court should pass an order at least in terms of prayer (a) of the application. Learned senior counsel for the defendant, however, submits that the defendant does not have any confidential data or trade secrets of the plaintiff. He also submits that the defendants are not printing, publishing, reproducing, copying or plagiarizing or otherwise dealing in any manner with the software "Health Buzz"."

3. The Court had accepted the said undertaking and bound the Defendants to the same. Mr. Dewan submits that Defendants had specifically undertaken not to deal with software "Health Buzz" and this undertaking is wide enough to include within its scope any activity that enables the Defendants to access Plaintiffs' proprietary's software "Health Buzz". The said activities include - services that entail the use of software's source code and also those that do not entail the use of source code which is confidential and proprietary information of the Plaintiffs. Mr. Dewan submits that since Defendants are servicing the said software being used by Plaintiffs' customers, the undertaking has been violated and Defendants are guilty of contempt of the Court.

4. The undertaking given to the Court as recorded under para 9 extracted above does not specifically record that the Defendants had undertaken not to service the software. In fact in the Order dated 28th September 2018, the Senior Counsel for the Plaintiffs had specifically made a grievance to this effect before the Court, as recorded in para 5 of the aforesaid Order which reads as under: -

"5. At this stage, learned senior counsel for the plaintiff has, however, submitted that the defendants are illegally trying to provide service to some of the clients of the plaintiff who are using the software HealthBuzz. He submits that the defendants cannot be permitted to service the said software HealthBuzz as in the License Agreement entered into by the plaintiffs with its customer the right to carry on servicing of the said software lies exclusively with the plaintiff."

It is thus evident that the Court did not give any direction on this submission, and rather observed in para 6 that - "This plea of the plaintiffs would be gone into on the next date of hearing.". Further, Mr. Anil Sapra, Senior Counsel for Defendant Nos. 1 to 7 & 12 to 19 points out that in the application - I.A No. 13265/2018, a separate prayer had been made for restraining the Defendants from providing any services in relation to the software "Health Buzz".

5. In view of the above, it is evident that there is no undertaking given by the Defendants, as is sought to be alleged by the Applicants/ Plaintiffs. The undertaking given cannot be read to include what is not stated therein. The observations made in para 5 of the aforesaid Order leaves no room for doubt. Further, if despite making a specific prayer in the application, the Court did not pass any restrain order, the implication is that there is no injunction against the Defendants as is sought to be canvassed by the Plaintiff. If there is no restrain operative, the question of breach or violation thereof does not arise.

6. In view of the above, the Court does not find any merit in the application. Dismissed.

CS(COMM) 1146/2018

7. Mr. Nakul Dewan argues that the Court may now consider the aspect that was left open in terms of observations made in para 6 of the Order dated 28th September, 2018.

8. List this matter for further directions on 10th December, 2021.

SANJEEV NARULA, J OCTOBER 25, 2021/as Signature Not Verified Digitally Signed By:SAPNA SETHI CS(COMM) 1146/2018 Page 3 of 3 Signing Date:28.10.2021 11:00