Delhi District Court
M/S. Gi Global It Solutions Pvt. Ltd vs Cs Dj 7712/16 M/S. Gi Global It Solutions ... on 18 July, 2022
DLSE010008792016
Presented on
: 23-04-2016
Registered on
: 25-04-2016
Decided on
: 18-07-2022
Duration
: 6 years, 2 months, 25 days
Date of Filing : 25.04.2016
Date of Institution : 25.04.2016
Date reserved for judgment : 08.07.2022
Date of announcement of judgment : 18.07.2022
Decision : Suit as well as
Counter claim dismissed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
CS DJ 7712/16
&
CS DJ 580/22 (Counter Claim)
M/S. GI GLOBAL IT SOLUTIONS PVT. LTD.
Having office at
S410, Ground Floor Lower M.P.,
Greater Kailash II,
New Delhi110045. ........... Plaintiff/Respondent
Versus
CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar &
CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 1/14
MR. GAURAV BHASKAR
G25A, Sector9,
New Vijay Nagar,
Ghaziabad, U.P. ..... Defendant/Counter
Claimant
J U D G M E N T (Common):
1. By way of this common judgment, I shall dispose off the suit for recovery of Rs.20,67,250/ as damages on account of suddenly leaving the services of the plaintiff company and joining one of the competitor of the plaintiff company and on the ground of loss caused due to using the client/company data by defendant. The plaintiff company had also sought permanent injunction to restrain the defendant/counter claimant from using, promoting and selling any campaigns, product or data identical to that of the plaintiff company and also restraining the defendant/counter claimant from providing services of ORACLE Banner DBA and approaching the clients of plaintiff company.
2. On the other hand, the defendant/counter claimant had claimed a sum of Rs.5,41,000/ on account of damages to his reputation and loss of his future job prospectus apart from claiming the litigation charges and interest.
3. The case of the plaintiff is that it is an IT company and is in the business of software publishing, consultancy and supply related services including consultancy in the form of custom software as per the needs of the users. The defendant was appointed as a senior oracle DBA CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 2/14 for a period of two years vide appointment letter dated 01.10.2012 Ex PW-1/B. Since for the plaintiff company, its data and client base are its most important property and utmost take care is taken by the plaintiff of its data and confidential information and it therefore executed a confidential agreement with all its employees. Defendant also executed a confidentiality agreement Ex PW-1/D, Employment agreement Ex PW- 1/C as well as a training agreement Ex PW-1/E all dated 01.10.2012. As per the said agreement, the defendant was barred from using the confidential data, client base, product knowledge and campaigns of the plaintiff for his own profit and was under obligation to maintain confidentiality of the same as per confidential clause. After expiry of two years of service, a fresh addendum to the previous agreements Ex-PW- 1/F was executed between the parties on 11.04.2016. The plaintiff continued to provide the defendant with the various information and data. All of a sudden, the defendant left the services of the plaintiff company in July 2015 after getting all confidential data regarding the application and data base of the plaintiff, without giving any notice and in breach of the agreements. Therefore, the defendant was liable to pay 30% of their annual cost to the company.
4. Plaintiff further stated that after the tendering of resignation, on 02.07.2015, plaintiff company and defendant entered into an agreement to train the client and employees of plaintiff company till June 2016 and defendant was bound by the liability admitted by him in the said agreement dated 02.07.2015.
CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 3/14
5. Plaint further stated that it came to know that defendant has joined a competitor company namely Almoayed Data Group of companies, Bahrain and later on, it was got confirmed that one of the clients of plaintiff company namely Bahrain Polytechnic was now availing the services of Almoayed Data Group of companies, Bahrain after the defendant joined the said competitor who is providing the same services that is ORACLE Banner DBA as used to be provided by the defendant on behalf of the plaintiff company. Therefore, the defendant violated the terms and conditions of the contract between the plaintiff and the defendant. Plaintiff is also giving advisory to other companies who are having similar profile as that of the plaintiff company and the defendant is sharing the confidential data of the plaintiff to other companies, as the defendant had access to the entire data base of the plaintiff and now misusing the same. The defendant allured the employee of the plaintiff company while he was in the service of the plaintiff company to take the service of the defendant which has harmed the plaintiff company in lost client base and also caused financial loss. The defendant violated the employment agreement, training agreement, confidentiality agreement and because of leaking of confidential data and providing the same to the competitors, the plaintiff company claimed losses of Rs. 17,00,000/ because of loss of renewal of Bahrain Polytechnic Agreement and also claimed a compensation of Rs. 3.5 lakhs on account of the agreement dated 02.07.2015. Plaintiff also CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 4/14 prayed for a decree of permanent injunction to restrain the defendant from using, promoting and selling any campaigns, product or the data identical to the campaigns, product or the data of the plaintiff company and further providing services of Oracle Banner DBA and also to approach the clients of the plaintiff company with the same. CASE OF DEFENDANT/COUNTER CLAIM
6. Defendant filed the written statement/Counter Claim wherein he took the plea that the suit of the plaintiff is barred under law being hit by Section 27 of The Contact Act which provides Agreements in restraint of trade being void. Though the defendant did not dispute the execution of the appointment letter, the confidentiality agreement and training agreement and employment agreement all dated 01.10.2012 but stated that he was forced to join the plaintiff company and was forced to signed a number of documents from time to time. The defendant also did not dispute the execution of the addendum agreement dated 11.06.2014 but submitted that he was forced to signed it as well as the training agreement. The same training agreement was renewed for a period of two more years without giving any details though the defendant was duly qualified to perform the job he was tasked with and no training was ever required. The defendant admitted that he resigned from the plaintiff company from 06.06.2015 but stated that he was forced into signing the acknowledgement dated 02.07.2015 but it was out of his own volition that he made best efforts to train the clients and employees of the CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 5/14 plaintiff company but the representative of the plaintiff company harassed the defendant to give trainings at week days. Defendant did not specifically deny having joined Almoayed Data Group of companies, Bahrain but stated that Almoayed Data Group of companies, Bahrain is in the IT business for more than two decades and Bahrain Polytechnic has been one of their client since many years ago. He denied that any training was provided by the plaintiff on banner or any related product. The plaintiff failed to disclose as to which client and which data has been misused or which client has been poached by the defendant. He stated that it is merely harassment by a rich company using its financial resources. He submitted that he handed over his laptop and other accessories to one of his subordinates and completed all the formalities for leaving and if he had not signed the acknowledgement dated 02.07.2015, he would not have been given reliving and experience letter. The defendant filed the counter claim seeking compensation of Rs. 5,41,000/ on account of damage to his reputation along with interest @ 10 per cent per annum and litigation expenses on account of defamatory letters sent by the plaintiff company to various companies including his employers making false claims against the counter claimant / defendant. Therefore, defendant/Counter Claimant prayed for dismissal of the suit and decreeing of counter claim
7. Plaintiff as well as defendant/counter claimant filed the replication/reply to each others' written statement reiterating their stand CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 6/14 in their pleadings.
8. From the pleadings of the parties, following issues were framed in the suit as well as counter claim:
ISSUES:
1. Whether plaintiff is entitled to decree of damages and compensation as prayed for?OPP
2. Whether plaintiff is entitled to any interest on the amount sought for in the plaint if issue no. 1 is decided in favour of plaintiff and if yes, at what rate and for what period? OPP
3. Whether plaintiff is entitled to decrees of permanent injunction as prayed for?OPP
4. Whether defendant/counter claimant is entitled to damages and compensation as prayed for in the counter claim?OPD
5. Whether defendant/counter claimant is entitled to any interest on the amount sought for in the counter claim if issue no. 4 is decided in favour of defendant/counter claimant and if yes, at what rate and for what period?OPP
6. Relief.
9. During plaintiff evidence, plaintiff examined two witnesses PW 1 Sh. Divye Chugh who tendered his affidavit as Ex.PW1/1 and relied upon the documents exhibited as Ex.PW1/A to Ex.PW1/I and documents as Ex.P1 to Ex.P3. PW2 Shri Avijit Sharma tendered his CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 7/14 affidavit as Ex.PW2/1 and relied upon the documents Ex.PW2/A and Ex.PW2/B and deposed on the similar line as that of PW1.
10. Defendant/counter claimant did not examine any witness despite opportunity given.
11. I have heard Ld. Counsel for the parties and have gone through the record carefully.
12. The issue wise findings of the court are as under:
ISSUE NO.1 &2:
Whether plaintiff is entitled to decree of damages and compensation as prayed for?OPP Whether plaintiff is entitled to any interest on the amount sought for in the plaint if issue no. 1 is decided in favour of plaintiff and if yes, at what rate and for what period?OPP
13. In support of its claim, the plaintiff company has examined two witnesses PW1 and PW2. PW1 Sh. Divye Chugh is the Legal Advisor of the plaintiff company. Similarly, PW2 is also the Legal Assistant of the plaintiff company. Both are from legal back ground and are not technical persons. The employment agreement Ex. PW1/C dated 01.10.2012 in clause 7.1 states that employee is required to work for atleast minimum stipulated period of time of two years and on breach of the training agreement, the employee to pay 30 % of their cost to company by way of compensation under the terms of the training agreement. Alongwith this, there was a confidentiality agreement Ex.
CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 8/14 PW1/B dated 01.10.2012. Not only that, there was a training agreement dated 01.10.2012 which among others provided that the company agreed to train employee for a period of 3 months and shall bear all the costs and expenses incurred in such training and required the employee to complete the training and thereafter not to leave the services of the plaintiff company for a minimum period of two years from the date of signing of this agreement and in default, the employee shall pay 30% of their gross salary.
14. After having completed around two years, the addendum agreement Ex. PW1/F dated 11.06.2014 was also executed by the defendant which without expressly stating out the details, simply extended the employment and training agreement for a period of 3 years from 01.10.2013 and also called upon the defendant to give 90 days notice period. The defendant having resigned on 06.06.2015, after his resigning, acknowledgement agreement dated 02.07.2015 Ex. PW1/I was executed between the parties. As per which, the plaintiff company stated that defendant owed Rs.3.5 lakhs as per contractual terms but in lieu thereof, defendant agreed to train the employees as per the stated training program. And on failure to fulfil those obligations, the defendant undertook to pay Rs. 3.5 Lakhs to the plaintiff.
15. So far as the defendant joining a competitor is concerned, the plaintiff has not placed on record any document to show as to when the defendant joined the Almoayed Data Group of companies, Bahrain. No CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 9/14 document has been placed on record to show that Bahrain Polytechnic is its client and the nature of the services being provided by the plaintiff to Behrain Polytechnic. Nor it has been placed on record as to what was the quantum of work which was sourced by the plaintiff from Behrain Polytechnic. Nor it has been shown as to how much losses, the plaintiff company has suffered on account of the withdrawal of clientele by Behrain Polytechnic. In fact, the two PWs are having legal background only and could not throw any light about the technical aspect of the matter. Merely because the employee has left the company and joined a competitor does not itself makes the employee liable to pay any unreasonable demand raised by the exemployer.
16. In order to compute a loss, there has to be a reasonable nexus between the acts/omission of the defendant and actual loss caused to the plaintiff company which is conspicuously missing here. Nothing has been placed on record by the plaintiff company to show that Almoayed Data Group of companies, Bahrain in fact poached the work of the plaintiff. Further, the pleas raised by both the witnesses regarding data theft and the defendant taking the clients base and giving advisory to its clients and misusing the confidentiality clause are merely vague pleas without any specifics and substance and the witnesses have failed to give any concrete information regarding the claim. PW1 during his cross examination, has admitted that they protect their data and they do not allow the employees to use their pen drives. PW1 has further stated that CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 10/14 except the bald assertion, there is no document which can say that the defendant took the confidential information of the plaintiff. Not only that, he failed to comment as to when the training was provided to the defendant shrugging off by saying that he is not a technical person. He even failed to tell the period when the plaintiff company started providing services to Bahrain Polytechnic and categorically admitted that he do not have the lists of client lot, alleged to be stolen by the defendant from the plaintiff.
17. Therefore, in my considered opinion, on the basis of the documents relied upon by the plaintiff, there is nothing on record to suggest that the acts / omission of the defendant has caused any loss to the plaintiff company. Therefore, plaintiff is not entitled to any compensation of Rs. 17 lakhs as prayed by them on account loss of the business from the clientele loss of Bahrain Polytechnic. The suit appears to be nothing but a pressure tactics. Not only that, to say the least, plaintiff had not even filed any agreement between it and the Bahrain Polytechnic to show that Bahrain Polytechnic was its client.
18. Coming to the claim of Rs. 3.5 lakhs on account of the agreement dated 02.07.2015, both the PW1 and PW2 in their affidavit have no where stated specifically that the defendant committed breach of agreement dated 02.07.2015. They simply stated that in their affidavits that as per the agreement dated 02.07.2015, the defendant is liable to pay Rs. 3.5 lakhs. There is no specific plea in their affidavits that the CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 11/14 defendant committed breach of agreement dated 02.07.2015 Ex.PW1/I. The earlier agreements, be it in the nature of employment agreement, appointment letter, training agreement etc. lost their relevance in the light of the fact after resigning on 06.06.2015, the plaintiff company and defendant entered into the agreement dated 02.07.2015 and both the parties agreed that the defendant owed Rs. 3.5 lakhs as per contractual terms. Therefore, there is no need to refer to the earlier agreements to ascertain whether any liability accrued on account of resigning of the defendant on 06.06.2015 or non providing of notice period by the defendant. Once the parties have computed the terms in a subsequent agreement, there is no need to refer to the earlier agreements.
19. However, there is not even an allegation in the affidavits of both the PW1 and PW2 that the defendant had committed breach of the agreement dated 02.07.2015 ExPW1/I. In the absence of any such claim in their evidence, merely because the defendant had entered into an agreement dated 02.07.2015 does not entitle the plaintiff to the amount claimed. Ex.PW1/I specifically states that if defendant does not fulfil all the tasks mentioned therein, only then he agreed to pay Rs. 3.5 lakhs to the plaintiff. Both the PWs had specially omitted to allege that the defendant had failed to fulfil the terms of agreement dated 02.07.2015. In view of the same, no case is made out for award of any amount to the plaintiff company. Therefore, both the issues are decided in favour of the defendant/counter claimant plaintiff and against plaintiff company.
CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 12/14 ISSUE NO.3:
Whether plaintiff is entitled to decrees of permanent injunction as prayed for?OPP
20. The defendant having left the plaintiff company way back in the year 2015 and there is nothing on record to show that defendant in fact committed any theft of any data of the plaintiff company and misused it, and further in view of the finding in issue no. 1 and 2, no case is made out for grant of any injunction in favor of the plaintiff and against the defendant. Therefore, this issue is decided in favour of the defendant/counter claimant plaintiff and against plaintiff company. ISSUE NO.4 and 5:
Whether defendant/counter claimant is entitled to damages and compensation as prayed for in the counter claim?OPD Whether defendant/counter claimant is entitled to any interest on the amount sought for in the counter claim if issue no. 4 is decided in favour of defendant/counter claimant and if yes, at what rate and for what period?OPP
21. Since the defendant/ counter claimant has not led any evidence despite opportunities and defendant has failed to prove that any defamatory letters were sent to various companies. Therefore, no case is made out for grant of any compensation to the defendant as well. Therefore, both issues are decided against the defendant/counter claimant. Consequently, main suit and counter claim are dismissed.
CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 13/14 RELIEF :
22. Suit as well as the counter stand dismissed. Parties to bear their own costs. Decree sheets be prepared accordingly.
File be consigned to the Record Room.
Announced and dictated in the open Court on 18.07.2022 (Munish Markan) Additional District Judge02 (SE), District Courts, Saket, New Delhi ks/pk CS DJ 7712/16 M/s. GI Global IT Solutions Pvt. Ltd. Vs. Gaurav Bhaskar & CS DJ 580/22 Gaurav Bhaskar Vs. M/s. GI Global IT Solutions Pvt. Ltd.(Counter Claim) Page 14/14