Gujarat High Court
I-Sourcing Technologies Pvt. Ltd. & vs E Procurement Technologies Ltd on 27 August, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/CA/9335/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 9335 of 2015
In SPECIAL CIVIL APPLICATION NO. 12969 of 2015
With
CIVIL APPLICATION NO. 9351 of 2015
In SPECIAL CIVIL APPLICATION NO. 12969 of 2015
With
CIVIL APPLICATION NO. 9349 of 2015
In SPECIAL CIVIL APPLICATION NO. 12969 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12969 of 2015
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I-SOURCING TECHNOLOGIES PVT. LTD. & 1....Applicant(s) Versus E PROCUREMENT TECHNOLOGIES LTD., & 3....Respondent(s) ========================================================== Appearance:
MR KAMAL TRIVEDI, Sr. Advocate with MR YJ TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 2 MR PERCY KAVINA, Sr. Advocate WITH MR CR ABICHANDANI, ADVOCATE for the Respondent(s) No. 1 MR HARSHIT S TOLIA, ADVOCATE for the Respondent(s) No. 2 MR. PANAM C SONI, ADVOCATE for the Respondent(s) No. 3 - 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 27/08/2015 CAV ORDER
1. The petitioner - original plaintiff has filed draft amendment in the main petition. Though the respondents could not get time to file affidavit-
in-reply to such draft amendment, since the Civil Applications, draft amendment and main petition are required to be heard and disposed of at the earliest, respondents - defendants have submitted oral objections to such draft amendment. However, to avoid delay in the disposal of main Special Civil Application, at present, without entering into the factual and other details as well as aspects, the draft amendment is allowed as prayed for. The amendment should be carried out in the main petition and amended copy of petition shall be filed on record and shall be provided to all concerned. However, it is made clear that granting of such amendment at this stage is only with a view to put an end to the main petition at the Page 1 of 10 HC-NIC Page 1 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER earliest, and therefore, such amendment could not be made part of the pleadings before the trial Court, if such fact is not disclosed in the pleading before the trial Court. Similarly, if plaintiff files any application for similar amendment of the pleading before the trial Court, the trial Court shall decide it purely in accordance with law applicable to such proceedings and shall not influence itself to allow such amendment only because it is allowed in this petition. It cannot be ignored that we are dealing with the petition under Articles 226 and 227 of the Constitution of India, whereas the trial Court shall decide such application pursuant to relevant provision of law.
2. When both the parties have agreed to decide the main petition finally, Civil Applications no.9335, 9349 and 9351 of 2015 for vacating ex-parte ad-interim relief by different respondents, do not require separate hearing and orders. However, when the matter is taken up for final hearing because of such Civil Applications, initially, opponents herein being original defendants have advanced their arguments at first instance.
3. Learned Senior Counsel Mr.Kamal Trivedi appearing with Mr.Y.J.Trivedi for the respondents no.1 and 2 in the main petition has pointed out that original plaintiff has filed a Civil Suit no.1836 of 2015 before the City Civil Court, Ahmedabad on 31.7.2015 with an application for interim relief to restrain the defendants from using, directly or indirectly, intellectual properties belonging to the plaintiff viz. data of their clientage, e-auction software and all other data relating to tenders. On first date i.e. on 31.7.2015, the Chamber Judge of City Civil Court has not granted ex-parte ad-interim and observed that it would not be just and proper to grant ex-parte ad-interim injunction order without hearing the other side, hence issue show-cause notice to the defendants making it returnable on 5.8.2015 i.e. just after five days. Such order at Annexure-A shows that initially though returnable date was fixed as 11.8.2015, while signing such order, the learned Judge has changed it to 5.8.2015, Page 2 of 10 HC-NIC Page 2 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER probably because of the request by the plaintiff to keep it at the earliest. It is submitted that, thereby, the defendant no.1 being the main contesting defendant has filed written statement on returnable date itself i.e. 5.8.2015 without seeking any adjournment or time to file such reply; whereas, other defendants and even plaintiff has sought time on 5.8.2015 to file written statement and affidavit-in-rejoinder respectively. Thereby, matter was adjourned to 17.8.2015. Therefore, it is submitted that when plaintiff itself has prayed for time before the trial Court to file rejoinder affidavit and when Court is granting only 12 days time to file rejoinder affidavit, without filing a rejoinder affidavit before the trial Court, the plaintiff has preferred this Special Civil Application on 11.8.2015 seeking similar interim relief which was prayed in paragraph 42(A) of the application for interim relief before the Civil Court, in paragraph 9(C) of the present petition. By order dated 12.8.2015 the Co-ordinate Bench of this High Court (Coram: Hon'ble Mr.Justice Paresh Upadhyay) has by issuing notice, making it returnable on 14.9.2015, granted interim relief in terms of paragraph 9(C), which amounts to granting relief in terms of paragraph 42(A) of the application for interim relief before the trial Court, which has yet to hear and decide such application for similar relief, but after plaintiff files rejoinder affidavit.
4. Therefore, it is vehemently argued by the respondents that though trial Court has not granted ex-parte interim relief and though contesting defendants have already filed written statement on first returnable date without seeking any adjournment, and on the contrary though plaintiff has sought time to file rejoinder, without arguing the application at Exh.5 before the trial Court so as to confirm appropriate relief by appropriate order below an application for interim injunction, present application is filed for similar interim relief, and therefore, it is submitted that the Special Civil Application itself is not maintainable and even if it is maintainable, then, since the trial Court has not ceased with the matter, Page 3 of 10 HC-NIC Page 3 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER and since the trial Court is yet to decide the application for interim relief on its own merits after filing of rejoinder affidavit by the plaintiff itself, the Special Civil Application has no substance and deserves to be dismissed at the earliest. However, since there is ex-parte ad-interim relief in such main petition, and which was ordered to be listed after a month i.e. on 14.9.2015, the respondents - defendants have no option, but to file Civil Applications for modification of interim relief.
5. In view of such background, main petition is certainly required to be heard and decided at the earliest and for the purpose both the parties have agreed to dispose of the main petition also.
6. The development in the litigation between the parties, which is recorded herein above, makes it clear that though petitioner - plaintiff has sought time before the trial Court to file rejoinder affidavit on 5.8.2015, instead of requesting the trial Court to decide the application on its own merits, when the written statement of contesting defendants is on record, the plaintiff/petitioner has filed this petition, though the plaintiff should have requested the trial Court to decide the application at the earliest. It is undisputed fact that rejoinder is to be filed by the plaintiff, who is petitioner before this Court, and therefore, if there is any necessity to get interim order at the earliest, then, petitioner - plaintiff should have filed rejoinder affidavit immediately after 5th August and, thereby, in any case before 11.8.2015 when this Special Civil Application is filed and should have requested the trial Court to decide the application on its own merits at the earliest. Instead of following such practice, which is certainly lawful, the plaintiff - petitioner has preferred this Special Civil Application, wherein the main prayer is to quash and set-aside the order dated 31.7.2015 below an application for injunction with relief to restrain the respondents in terms of there prayer in paragraph 42(A) of such application. Thereby, though the subject matter is pending before the Civil Court for its adjudication in accordance with law, the petitioner -
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plaintiff has initiated a separate proceeding for the same relief with an intelligent drafting and with a prayer to quash and set-aside the order dated 31.7.2015. If we peruse the pleading in the petition, which runs into 37 pages, it is more or less in the manner as if it is appeal against order dated 31.7.2015 by the Civil Court. Whereas, order dated 31.7.2015 to issue notice upon defendants, if quashed and set-aside, then there is no scope for the plaintiff to get any order below Exh.5, because for any order, ultimately reasonable opportunity certainly needs to be extended to the other side. Therefore, prima facie, I am of the opinion that such Special Civil Application, is not maintainable and it deserves to be dismissed in limine.
7. However, now when notices are served upon the respondents and when respondents have filed their Civil Applications with relevant documentary evidence, they were heard at length to ascertain the legality and validity of the impugned order as well as substance in the interim order.
8. However, though both the parties have argued at length, at present, I do not intend to decide the dispute with reference to factual details since injunction application is yet to be finally decided by the trial Court. However, the sum and substance of both the sides may be recollected here, which confirms that there is no substance in the petition so as to grant ex-parte injunction as prayed for, more particularly when matter is pending before the Civil Court.
9. The petitioner has while answering the reply of the respondents, tried to emphasize that when they are pleading secrecy of their data, non- disclosure of such data before the trial Court cannot be questioned and now in the form of draft amendment, they have come forward with certain more details so as to prove their case. However, it is also an admitted position that the factual details disclosed by draft amendment is Page 5 of 10 HC-NIC Page 5 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER not disclosed in the pleadings before the Civil Court, and therefore, respondents are right in saying that when such facts are not part of the record before the Civil Court, it cannot be taken into consideration. However, as aforesaid, the amendment is allowed only with a view to avoid technicality and delay in disposing these Civil Applications and I do not intend to discuss or determine any factual details at this stage.
10. It is also submitted by the learned advocate for the petitioner that interim order dated 12.08.2015 by this Court cannot be challenged by way of such Civil Applications and that if at all respondents want to challenge such an order, they should approach the higher Court. Such issue is also not required to be determined at present, since we are deciding the main matter which has no substance, pursuant to observation and discussion in this order.
11. So far as secrecy of information is concerned, learned senior counsel Mr.Percy Kavina for the petitioner has tried to explain that though cell-phone towers are in public domain and its existence is known to all, details of its location qua particular service provider and its range, is certainly a secret information of that service provider and cannot be parted with, and therefore, there is substance regarding the secrecy of information of the petitioner - plaintiff. So far as defence regarding existence of all such information in public domain is concerned, it is submitted that, in fact, petitioner has created several fake IDs so as to identify the intruder and data theft. To explain all such orders, petitioner is relying upon paragraph 2.5.6 of proposed draft amendment and submits that it cannot be the circumstance for all its clients to get an e-mail from the respondents just before the renewal of the contract, to shift and change their service provider from plaintiff to respondents with some nominal difference in charges.
12. I do not find substance in any such submission for the simple Page 6 of 10 HC-NIC Page 6 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER reason that even if petitioner - plaintiff is claiming secrecy of particular information or data and even if such information is not warranted to be disclosed in regular pleading viz. plaint and application for injunction, the law and rules specifically provides for such situation whereby any litigant is free to produce relevant information before the Court, claiming secrecy or confidentiality with an application to keep such information/details in safe custody and not to disclose it to the either side of the litigation and also to the public at large as a public record. Therefore, in fact, respondents are right when they claim that the perusal of the pleadings by the plaintiff, both before the trial Court as well as in this petition, confirms that there is no disclosure or even whisper that which information or data is secret data of the plaintiff and stolen by the defendant. It is further submitted that all such information and data are otherwise available in the public record because they mainly contain names and addresses with telephone numbers and e-mail IDs of different companies, who are interested in particular type of e-tenders.
13. It is also obvious and clear that when defendants have come forward with a case that so far as data is concerned, it is available in the public record and that too when they have purchased such record from some companies, which are providing compilation of such data and when they have produced bills of CDs purchased by them with such data, the plaintiff should have joined such companies, who are dealing with such data on commercial basis. Similarly, when defendants have come forward with a case that so far as software is concerned, it is neither stolen by them from the plaintiff's control when some of the defendants are serving with the plaintiff nor developed on their own as if it is copied from the plaintiff's source, but it was developed from a software company, which provides service of developing such softwares. The plaintiff has failed to join such company as defendant and to prove that such company has either stolen or obtained unauthorizedly the software of the plaintiff and Page 7 of 10 HC-NIC Page 7 of 10 Created On Wed Sep 02 00:37:32 IST 2015 C/CA/9335/2015 CAV ORDER sold it to the defendants.
14. Similarly, when plaintiff's suit is based upon an allegation that some of the employees of defendants have stolen intellectual property of the plaintiff when they were serving with the plaintiff, with an allegation that some secret information received by such defendants when they were serving with the plaintiff, plaintiff has failed to disclose on record about their service condition which confirms that what is right, liability, responsibility and restrictions of such persons when they are in service of the plaintiff.
15. The respondents have relied upon and read-over paragraph 9(C) of the petition comparing it with paragraph 42(A) of the injunction application and first order dated 31.7.2015 so also paragraph 1(v) of Civil Applications. Respondents have also submitted that plaintiff has failed to explain and disclose any innovation in their software or even customer list, since details of which is not disclosed at all in the pleading though it is mandatory pursuant to Order VI Rules 2 and 4 of the Civil Procedure Code. The respondents have also explained the difference between data and software of both the sides referring relevant pages from the paper- book and relied upon the provision of Section 52(1)(aa)(ab) of the Indian Copyright Act, 1957. So far as decoy e-mail IDs created by the plaintiff to ascertain the intrusion and data theft is concerned, with reference to one [email protected], which is referred and discussed in paragraph 2.5.6, the respondents have pointed out that, in fact, they got such e-mail ID from one of the CD purchased by them and invoice of such purchase is also produced on record. It is submitted that e-mail ID [email protected] is very well disclosed in 99DATACD.COM, which claims to be the biggest range of business & industrial data CD having 26700 e-mail IDs and has shown screen-shot of relevant website from where they received such e-mail ID. Therefore, there is no substance in the petition to get immediate interim relief.
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16. Respondents are also relying upon following decisions, both on merits of the case and also on limited jurisdiction of this Court in such Special Civil Applications. However, I do not intend to discuss any such judgment at this stage, since the real issue is yet to be decided by the trial Court. Therefore, discussion and determination of any such issue would unnecessarily prejudice the trial Court.
a) Decision by High Court of Delhi in Interim Application Nos.6099 and 6887 of 1993 and Suit no.1469 of 1990 dated 20.10.1995 between Burlington Home Shopping Pvt.Ltd. Vs. Rajnish Chibber;
b) Decision by Hon'ble Apex Court in SLP (Civil) No.4352 of 2007 between Kirtibai Raval & Anr. Vs. Raghuram Jaisukhram Chandrani;
c) Decision by High Court of Delhi in CS(OS) No.199 of 2010 & I.A. No.920/2010 and IA No.924 of 2010 between Tech Plus Media Private Ltd. Vs. Jyotijanda & Ors. and;
d) Decision by High Court of Delhi in I.A.Nos.388/2004, 1267/2004 and 1268/2004 between Emergent Genetics India Pvt. Ltd. Vs.Shailendra Shivam and Ors.
Respondents have also relied upon a detailed order dated 31.01.2002 in Civil Suit no.3317 of 2001 between AIA Engineering Ltd. Vs. Bharat Dand & Ors. by the City Civil Court wherein all the issues which are involved in the present case are dealt with and which is in favour of the defendants. It is further submitted that said judgment has been confirmed by judgment dated 9.2.2007 of this High Court in Appeal from Order no.216 of 2002, which is also approved by order dated 16.3.2007 in SLP (Civil) no.4327 of 2007 by the Hon'ble the Supreme Court.
17. However, at this stage, I do not want to discuss any such judgment in detail to avoid prejudice to the trial Court while deciding the interim application for injunction on its own merits.
18. For the aforesaid reasons, since this Court has not entered into the merits of the main dispute between the parties, trial Court is at liberty to decide it independently and in accordance with law.
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19. In view of above facts and circumstances, there is no substance in the Special Civil Application, and therefore, the same stands dismissed, but the trial Court is directed to decide all the interim applications within four weeks from the date of receipt of writ of this order. Notice discharged. Interim relief stands vacated.
20. In view of the dismissal of Special Civil Application, Civil Applications also do not survive and stand disposed of.
(S.G.SHAH, J.) binoy Page 10 of 10 HC-NIC Page 10 of 10 Created On Wed Sep 02 00:37:32 IST 2015