1 NMS2257.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION kj NOTICE OF MOTION NO.2257 OF 2010 IN SUIT NO.2107 OF 2010 Maneck Davar ..Plaintiff Vs Confetti Events Pvt. Ltd., & Ors. ..Defendants ---- Mr.Davar i/by Ubiquity Juris for the plaintiff. Mr.Amit Jamsandekar along with Mr.S.P. Kadam i/by Kadam & Co. for the defendants. ---- Coram : S.C.DHARMADHIKARI,J Date : 19TH OCTOBER, 2010. PC 1 This is a motion in a suit filed seeking perpetual injunction against the defendants from in any manner using the plaintiff’s confidential information in providing marriage event services. The other permanent injunction is that defendants be restrained from disclosing or disseminating to any other person or persons the 2 NMS2257.10.sxw plaintiff’s confidential information in providing marriage event services and further prayer is seeking damages in the sum of Rs.10 lakhs. 2 The interim injunction that is claimed is to restrain the defendants in any manner from conducting an event called the Royal Wedding Shows and the Royal Wedding Celebrations or any event by whatever name called being a marriage event service and the defendants be restrained from using such confidential information as is imparted to them while they were in the employment of the plaintiff when carrying on their present business. 3 It is stated that the plaintiff took over the business of one Arpan Publishing Pvt. Ltd., who was organizing Marwar Mega Wedding Show. 4 It is stated that defendant nos.2 to 4 are ex-employees of the plaintiff. Defendant no.7 is also an ex-employee. Defendant no.1 3 NMS2257.10.sxw is a company incorporated under Companies Act 1956 and recently registered company providing services of marriage shows and events. Defendant nos.2 & 4 are its directors. Thus, it is clear that the plaintiff’s case is that defendant nos.2 to 4 are his ex- employees, defendant nos.5 & 6 are distinct persons and were associated with a separate organization. However, now, it is alleged that each of the defendants is associated with defendant no.1. 5 It is stated in the plaint that the plaintiff’s acquired the rights from Arpan Publishing Pvt. Ltd., and at that time there was an agreement which contained confidential information. It is stated that there is a magzine called Marwar Magzine which was published by this private limited company. It is stated that after taking over this private limited company’s rights it is the plaintiff who has been organizing the shows and events which has given him reputation and goodwill. He engaged the defendants and reliance is placed on the appointment letters wherein it is stated that without prior consent of the plaintiff-company, these 4 NMS2257.10.sxw defendants will not engage themselves directly or indirectly with or without any remuneration in providing services to any organization which will be similar to the plaintiff-company’s services. 6 It is alleged that during the course of their employment, the defendant nos.2 to 4 established a similar kind of business by incorporating a company which is defendant no.1. Thus there is a breach of the confidential agreement and also breach of the employment contract. 7 On these averments the application for interim relief is made and on an earlier date this Court declined ad-interim order. Therefore, one show was already held. The 2nd show has commenced from today till 21.10.2010. The 3rd show is organized by defendants in the month of January-2011. 8 It is argued that the plaintiff accepted the resignation letters in good faith because the contents of the letters are innocuous. It is 5 NMS2257.10.sxw subsequently that the plaintiff discovered that defendant nos.2 to 4 utilising the confidential information, set up identical business and a company has been incorporated during the course of their tenure as employees of the plaintiff’s company. In such circumstances and when shows are identical, based on wedding in Marwari families, then, concept being same, it is clearly trading on the plaintiff’s goodwill and reputation and which is protected even by section 27 of the Contract Act 1872. Reliance is placed in the case of Zaheer Khan Vs. Percept D’Mark(India) Private Limited & Anr reported in AIR 2004 Bom. 362. 9 On the other hand, it is contended by Mr.Jamsandekar appearing on behalf of the defendants that in the affidavits in reply, it has been clearly stated that the resignations were tendered after the plaintiff was appraised of the fact that defendant nos.2 to 4 do not see any prospect in continuing with the plaintiff and fully appraising him, they tendered resignations. They were accepted without any complaint or protest. Once resignations were accepted and the fact that plaintiff was aware that defendants have 6 NMS2257.10.sxw set up some what identical business, then by virtue of section 27 of the Contract Act, post resignation and severance of the relationship of the employee and employer, there cannot be any restraint on the defendants trading and carrying on business in the name and style of defendant no.1. It is contended that claim of the plaintiff in the suit is that there is a breach of confidentiality agreement as set out in the agreement. However, before any injunction is claimed, the plaintiff must aver that there is any information which is confidential in nature and that is known to the employee during the course of the employment, the information has been mis- utilised or mis-used by the employee by setting up a rival business. He submits that these basic averments are lacking and now reliance is placed on some general breach of contract of employment. In such circumstances the plaintiff should not be allowed to argue contrary to his pleading which in any event is inadequate. However, it is submitted that two shows are already commenced/completed. 3rd show is scheduled to be held in January-2011. For all these reasons no injunction should be granted in favour of the plaintiff as claimed. 7 NMS2257.10.sxw 10 Having perused the plaint and the annexures thereof so also affidavit on record, it is apparent that plaintiff and defendants are engaged in wedding show/exhibition, such wedding shows or exhibitions wherein there is display of articles, clothing, jewellery etc. is a common feature and the defendants have pointed out several such shows which are being organized in the wedding season. There is nothing peculiar to the plaintiff show. In the affidavit of defendant no.2 filed in reply to the Notice of Motion in paragraph 3(i) it is stated that such shows are regularly organized in India and exhibits A to A7 of this affidavit are brochures which are readily available. The list of exhibitors showcasing their products in such shows are also available. The dates put by various organizations and by various organizers are also available. In such circumstances, prima facie, there does not appear to be anything peculiar or speciality attached to such wedding shows and exhibitions. If there is any feature of the plaintiff’s show, which makes it special and gives him reputation in the market, then the nature of the same and in any event, the confidential 8 NMS2257.10.sxw information allegedly disclosed should have been stated on the basis of such peculiar feature. To my mind, the plaintiff has failed to make out even prima facie case of breach of confidentiality as alleged. The alleged confidential information disclosed to the employees has not been set out. It has not been shown as to how confidential information was disclosed and how it was mis-used. This, coupled with the fact that the resignations have been accepted without any demur or protest shows that plaintiff is agitated and disturbed by the fact of defendants are able to organize their shows and exhibitions at regular intervals. Dates of the plaintiff’s shows and the defendants shows clashed is no ground to injunction because exhibitions are organized during wedding season. In such circumstances, prima facie case of breach of confidentiality is not made out. There is no case made out of the breach of the employment either. The basic pleading to show that employment agreement postulated not carrying out similar activities during the tenure of employment, by itself is not enough unless it is demonstrated that defendant nos.2 to 4 during their employment set up rival business. Across the bar, certificate of 9 NMS2257.10.sxw incorporation was produced. I am told that an inference be drawn from the same that defendant nos.2 to 4 set up such business during the tenure of their employment. They wanted to leave plaintiff’s employment for better prospects. After appraising him of their intention each one of them tendered the resignation and it is a pure coincidence that they chose to resign immediately and one after another. 11 Reliance on the judgment of the Division Bench will not advance the case of the plaintiff any further. All that Division Bench did was to clarify the settled position, emerging from the decision of the Supreme Court and the Contract Act. That position is summarised in paragraph-10 of this decision and far from assisting the plaintiff in this case, it is not pointed out as to how the trading of the plaintiff was done because on oath it is pointed out by the defendants that in or around 5.4.2010 they published 1st advertisement of the 1st season. That was held on 16 to 18 July-2010. Thereafter, it is pointed out that the plaintiff made several attempts to spoil the defendants’ reputation by writing e- 10 NMS2257.10.sxw mail communication and making false complaints. It is pointed out that in spite of all this, 2nd show came to be organized. It is stated that as to how attempts were made to stall the 2nd show. In such circumstances, and when concept is not original to that of the plaintiff, I do not find any case to grant any interim relief. Plaintiff has claimed damages for the acts in which the defendants have allegedly indulged. He will have adequate opportunity to prove his claim and recover whatever sums from the defendants. At this stage, he has failed to make out any case of grant of interim relief as granting it would be going contrary to the section 27 of the Contract Act and particularly when two shows of the defendants have already been held. Notice of Motion is therefore, dismissed. No orders. (S.C.DHARMADHIKARI,J)