Epikindifi Software And Solutions ... vs Edison Ramesh And Others on 30 October, 2023

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Delhi High Court - Orders

Epikindifi Software And Solutions ... vs Edison Ramesh And Others on 30 October, 2023

Bench: Prathiba M. Singh

                                    $~27
                                    *           IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +                                                 CS(COMM) 783/2023
                                                EPIKINDIFI SOFTWARE AND SOLUTIONS
                                                PRIVATE LIMITED                            ..... Plaintiff
                                                                Through: Ms. Kruttika Vijay, Mr. Gautam
                                                                         Swarup, Ms. Garima Sharma, Mr.
                                                                         Ankur Das, Advs. (M: 9717004767)
                                                                Versus
                                                EDISON RAMESH AND OTHERS                   ..... Defendants
                                                                Through: None.
                                                CORAM:
                                                JUSTICE PRATHIBA M. SINGH
                                                          ORDER

% 30.10.2023

1. This hearing has been done through hybrid mode.

I.A.21510/2023 (for exemption)

2. This is an application filed by the Plaintiff seeking exemption from filing clearer copies of documents. Exemption is allowed, subject to all just exceptions. Application is disposed of.

I.A. 21511/2023 (for additional documents)

3. This is an application filed by the Plaintiff seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.

4. Application is disposed of.

CS(COMM) 783/2023 Page 1 of 11

This is a digitally signed order.

5. In view of the fact that the Plaintiff has sought an urgent ex parte ad- interim injunction, the exemption from advance service to the Defendants is granted.

6. Application is disposed of.

I.A. 21513/2023 (u/S 12A of the Commercial Courts Act)

7. This is an application filed by the Plaintiff seeking exemption from instituting pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.

8. The Court has perused the application seeking exemption from institution of Pre-Litigation Mediation. The Supreme Court in Yamini Manohar v. TKD Keerthi, 2023 LiveLaw (SC) 906 has explicitly ruled that in the absence of any statutory requirement or rules enacted by the Central Government, a plaint need not be accompanied with a specific application to waive the process of pre-litigation mediation. The Court can decide whether an exemption from instituting of pre-litigation mediation should be granted or not. The said decision is to be made based on the facts and circumstances of each case as also the pleadings and oral submissions in the Court. The relevant extract of the decision in Yamini Manohar (supra) is set out below:

"3. This Court in "Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Limited." has held that Section 12A of the CC Act is mandatory. Pre- litigation mediation is necessary, unless the suit contemplates urgent interim relief.... Section 12A of the CC Act does not contemplate leave of the court, as is clear from the language and words used therein. Nor does the provision necessarily require an application seeking exemption. An application seeking wavier on account of urgent interim relief setting out CS(COMM) 783/2023 Page 2 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:28 grounds and reasons may allay a challenge and assist the court, but in the absence of any statutory mandate or rules made by the Central Government, an application per se is not a condition under Section 12A of the CC Act; pleadings on record and oral submissions would be sufficient. The words used in Section 12A of the CC Act are - "A suit which does not contemplate any urgent interim relief", wherein the word "contemplate" connotes to deliberate and consider. Further, the legal position that the plaint can be rejected and not entertained reflects application of mind by the court viz. the requirement of 'urgent interim relief'.

xxx xxx xxx

7. We are of the opinion that when a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act...

xxx xxx xxx

8. Having stated so, it is difficult to agree with the proposition that the plaintiff has the absolute choice and right to paralyze Section 12A of the CC Act by making a prayer for urgent interim relief. Camouflage and guise to bypass the statutory mandate of pre- litigation mediation should be checked when deception and falsity is apparent or established. The proposition that the commercial courts do have a role, albeit a limited one, should be accepted, otherwise it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12A of the CC Act. An 'absolute and unfettered right' approach is not justified if the pre-institution mediation under Section 12A of the CC Act is mandatory, as held by this Court in Patil Automation Private Limited (supra). The CS(COMM) 783/2023 Page 3 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29 words 'contemplate any urgent interim relief' in Section 12A(1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must "contemplate", which means the plaint, documents and facts should show and indicate the need for an urgent interim relief. This is the precise and limited exercise that the commercial courts will undertake, the contours of which have been explained in the earlier paragraph(s). This will be sufficient to keep in check and ensure that the legislative object/intent behind the enactment of section 12A of the CC Act is not defeated."

9. The Plaintiff-Epikindifi Software and Solutions Pvt. Ltd. has filed the present suit against Defendants Nos. 1 to 7, and also Defendant No. 8 (John Doe) who are believed to have illegally accessed the Plaintiff's software source code and client accounts on Amazon Web Services (hereinafter, 'AWS'). The plaint avers that the motive of these Defendants is to illicitly profit from the Plaintiff's software and covertly control the AWS client accounts, affecting the Plaintiff's business.

10. As a financial technology (hereinafter, 'FinTech') company, Plaintiff relies heavily on its proprietary software. It is averred that the AWS security breach has left them vulnerable, with a potential risk of Defendants Nos. 1-7 accessing not just the Plaintiff's, but also its client's confidential information, which includes services to the general public. This security compromise can lead to significant consequences, and thus urgent relief is required.

11. The Plaintiff has also filed criminal complaints with the Cyber Crime Wing in Tamil Nadu and Karnataka, and sought to take urgent steps to safeguard their rights, as well as those of their clients.

CS(COMM) 783/2023 Page 4 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29

12. Thus, considering the averments in the application and in light of the above decision of the Supreme Court, the present application for exemption from instituting pre-litigation mediation is allowed and disposed of. I.A. 21514/2023 (for court fees)

13. The court fee be deposited within two days and time to file the actual court fee e-stamp is extended by two weeks. Application is disposed of. I.A. 21515/2023 (for court fees)

14. This is an application seeking exemption from filing attested affidavits in the plaint and allied applications. This application has become infructuous and is disposed of accordingly.

CS(COMM) 783/2023

15. Let the plaint be registered as a suit.

16. Issue summons to the Defendants through all modes upon filing of Process Fee.

17. The summons to the Defendants shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statements, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statements shall not be taken on record.

18. Liberty is given to the Plaintiff to file the replication within 15 days of the receipt of the written statements. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replications shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

CS(COMM) 783/2023 Page 5 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29

19. List before the Joint Registrar for marking of exhibits on 7th December, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

20. List before Court on 14th December, 2023.

I.A. 21508/2023 (u/O XXXIX Rules 1 & 2 CPC) & 21509/2023 (u/O II Rule 2 CPC)

21. Issue notice.

22. The present matter has been listed in the second supplementary list upon urgent mentioning to the Hon'ble Judge-in-Charge (Original Side).

23. The Court has heard the submissions made by Ms. Kruttika Vijay, ld. Counsel for the Plaintiff.

24. It is submitted that the Plaintiff is a FinTech company that offers end- to-end cloud based FinTech software products and automation solutions to various entities such as banks, financial institutions. It was established in the year 2018, and has offices in Chennai, Bangalore and Sydney, Australia and Melbourne, Australia through a group company.

25. The Plaintiff's case is that it is making products and offering software services to various clients in India, Australia, Nepal, Mauritius and the APAC region. It claims to have a strong presence as a product development company in the FinTech sector.

26. The Plaintiff claims to have assets under management worth USD 2 Billion and daily transactions of around 3 million. The current turnover of the Plaintiff in the financial year 2022-23 is stated to be over Rs. 13 crores. The Plaintiff claims to have spent Rs. 1.6 crores on advertising, sales, marketing, and promotional activities since its inception until the time of filing the current suit.

CS(COMM) 783/2023 Page 6 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29

27. The present suit for intellectual property theft, breach of confidentiality, misappropriate of sensitive personal information, copyright infringement etc. has been filed against the following Defendants:

1 Edison Ramesh Defendant No.1 2 Ramkumar Chandrasekaran Defendant No.2 3 Karuppaiah K. Defendant No.3 4 Kavya Vasanthakrishnana Defendant No.4 5 Sanjay M. Defendant No.5 6 Ravitha Devasenapathy Defendant No.6 7 Puja Agarwal Defendant No.7 8 John Doe Defendant No.8 9 Amazon Web Services India Private Defendant No.9 Limited

28. The Plaintiff alleges that Defendant Nos.1 to 7, who are employees/ f of the Plaintiff, have been involved in gross illegalities which has come to the knowledge of the Plaintiff recently. The Plaintiff is stated to have come to know that these employees allegedly obtained unauthorised access to the accounts of a few customers.

29. According to ld. Counsel for the Plaintiff, the Plaintiff uses Amazon Web Services as a cloud service provider to store and operate accounts of its clients, and the recovery email addresses of five of its customers have been changed, rendering them unable to access their accounts. The details of the said customers are as under:

CS(COMM) 783/2023 Page 7 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29 ACCOUNT EMAIL ID ACCOUNT NUMBER [email protected] 176357513865 [email protected] 795679207136 [email protected] 677945730785 [email protected] 718748130261 [email protected] 583868565775

30. It is averred that the accounts of five customers have been compromised, leading them to lodge complaints with the Plaintiff about their inability to access these accounts. Upon conducting an internal investigation in September 2023, the Plaintiff realised that the email IDs for recovery of passwords associated with the Amazon root account had been changed without authorisation from the Plaintiff or the concerned customer. The new recovery emails were initially changed to [email protected] and thereafter to [email protected]. Despite attempts to recover access to the accounts, owing to the policy of the Amazon Web Services (hereinafter, 'AWS'), the Plaintiff is unable to regain access to these five accounts.

31. The Plaintiff is stated to have already filed a criminal complaint with the Cyber Cell, Chennai, Tamil Nadu and three of the Defendants are stated to have been arrested last week. Further, FIRs have also been lodged in Bangalore, Karnataka.

CS(COMM) 783/2023 Page 8 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29

32. Urgency for today, according to the ld. Counsel of Plaintiff is that the said customers be provided access to their respective accounts, and an order be issued to Defendant No. 9 in this regard.

33. In the present suit, the following aspects as averred in the plaint need to be noted:

 The Plaintiff offers a variety of software products and services under the ".ezee Product Suite", for virtual KYC solutions in line with RBI regulations. These products are developed exclusively by the Plaintiff's employees and can be viewed on their website, ezee.ai. All employees and professionals involved in the product's creation signed confidentiality and non-disclosure agreements, ensuring the Plaintiff retains full ownership rights. Therefore, the Plaintiff is the primary copyright holder for these software products, manuals, and promotional materials.

 The Plaintiff also offers services where the ".ezee Product Suite" is integrated into its clients' systems. Many of the Plaintiff's clients are financial institutions, such as banks and NBFCs, that deal with sensitive personal data. This data is processed using the ".ezee Product Suite" and stored on Defendant No. 9-AWS platform. Due to the sensitivity of the data, login credentials for the primary AWS account are secured in a password-protected OneDrive Cloud account. The password is updated monthly and is stated to be accessible only to the Plaintiff's team.

 On 8th September 2023, the Plaintiff discovered that email IDs for recovery of passwords associated with the AWS root accounts had CS(COMM) 783/2023 Page 9 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29 been unauthorisedly changed to one gmail account [email protected]. As a result of the unauthorised change, all requests for password resets were being redirected to [email protected] leaving the Plaintiff's team unable to access and service the accounts.

 It has been also stated that five AWS root accounts remain compromised. Despite the Plaintiff's communications, the Defendant No. 9 vide order dated 9th October 2023, stated that customers are responsible for managing their accounts. It was further stated that AWS doesn't alter root account credentials without the consent of the root access holder, emphasizing the importance of privacy and data security. Thus, even after being informed about the hacking of the accounts and the subsequent impact on the Plaintiff's clients, Defendant No. 9 did not restore access.

 Further, FIRs have been registered against the Defendants Nos. 1-7 in Karnataka and Tamil Nadu, considering that there is apprehension that the said employees/Defendants may misuse the information obtained by them.

34. Considering the averments in the plaint, and the fact that all elements for a cause of action for breach of confidence have been established, as well as submissions made today, it is directed that Defendant No. 9-Amazon Web Services India Private Limited would immediately allow the Plaintiff to regain access and control over the AWS root accounts as extracted in paragraph 29 of this order.

35. The said order be given effect to within two working days upon service of the present suit to Defendant No. 9. In addition, it is directed that CS(COMM) 783/2023 Page 10 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29 the Defendants and anyone else acting for and on their behalf, who may or may not be under the Plaintiff's employment shall stand restrained from downloading, uploading, copying, replicating any sensitive personal information of the Plaintiff's customers, confidential information of the Plaintiff or information relating to its customers or in any manner dealing with the accounts of the Plaintiff or its customers.

36. Compliance of Order XXXIX Rule 3 CPC be made within three working days.

37. Reply to these applications be filed within four weeks after service of the complete paper book.

38. List on the date already fixed.

39. The present order be issued upon proof of deposit of court fee being shown by ld. Counsel for the Plaintiff.

40. Order dasti.

PRATHIBA M. SINGH, J.

OCTOBER 30, 2023/dk/dn CS(COMM) 783/2023 Page 11 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/10/2023 at 21:50:29

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Delhi High Court - Orders