B.Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of the plaintiffs in a suit for permanent and mandatory injunction and recovery of damages and is directed against order No. 10 dated 29th October, 2005, passed by the learned Civil Judge, Senior Division, 7th Court, Alipore, in Title Suit No. 164 of 2005 thereby dismissing an application for temporary injunction filed by the plaintiff on the ground that it had failed to prove a prima facie case to go for trial and at the same time, the balance of convenience and inconvenience was also in favour of refusing the prayer for temporary injunction.
(2.) The appellants herein filed the aforesaid suit thereby claiming the following relief: "a) For injunction restraining the defendants, their men, agents and assigns from acting in breach of the negative covenants contained in the service contract more fully set out in paragraph 12 and 13 hereinafter; b) Injunction restraining the defendants, their men, agents and assigns from carrying on business directly or indirectly for sale, marketing and Ink Jet Printers and consumables and parts thereof as well as servicing of the same; c) Decree for Rs. 1,00,00,000.00 (Rupees One Crore) as pleaded in paragraph 41 hereinafter and in the alternative, an enquiry into the damages and a decree for such sum as may be found due and payable upon such enquiry; d) For mandatory injunction directing the defendants to immediatey hand over to the plaintiff/petitioners all toolkits, service manuals and/or literature as well as consumables including parts and components of Ink Jet Printers lying in their possession and custody and in the alternative a decre for Rs. 5,00,000.00 (Rupees Five Lakhs) as pleaded in paragraph 34. e) Temporary and ad-interim order of injunction. f) Injunction. g) Costs. h) Such further or other reliefs to which the plaintiff/petitioner may be found entitled under the law and equity." The case made out by the appellants may be summarized thus: (i) The appellants carried on business of Marketing & Servicing of Coding and marking machines commonly known as Ink Jet Printers sold under the name and style of "Videojet". The appellants also market accessories, consumables and spare parts used for such marking and coding machines viz., Ink, make up, cleaning solution, filters etc. The appellant also provides service support and enters into annual maintenance contracts for such purpose. (ii) The appellant No. 1 is the sole Distributor of marking and coding equipments in India as also consumables, parts etc. as mentioned above manufactured by the "Videojet", USA, one of the world leaders in this line. (iii) The appellant's business in India is supply and service- oriented and the supply element comprises of marketing/selling of marking and coding equipments/inkjets printer, consumables and parts of the nature mentioned above and the service element comprises of servicing and maintaining these equipments. (iv) The appellant employed about 170 persons out of which there are approximately 100 qualified engineers. These qualified engineers are required by the appellant essentially for servicing the equipments as also for demonstrating and explaining to the customers the various functions of the equipments as well as for meeting the customers to find out their requirement of accessories, consumables, spares etc. and for servicing. (v) The nature of appellant's business is such that substantial confidential information is necessarily obtained or made available to its service engineers in course of their employment with the appellant. In view of the service element of the appellant's business, the appellant's employees and especially, the service engineers get personally acquainted with the appellant's clients to whom services are rendered on a regular basis. (vi) In view of the aforesaid reason, some amounts of reasonable restrictions are required to be incorporated in the service contracts of the appellant's engineers in order to protect the appellant's trade and business. These restrictions are in the form of negative covenant incorporated in the Service Contracts of engineers and those are set out below: "12a) You shall not, at any time during the continuance or after resignation/termination of your employment hereunder, divulge either directly or indirectly to any person, firm company or organization or use for yourself, any knowledge, information, formula, processes, methods, compositions, ideas or documents, concerning the business and/or affairs of the Company or any of its dealings, transactions or affairs which you may acquire or have come to your knowledge during the course of or incidental to your employment. Any invention, improvement or design conceived by you, while in our employment which is within the existing or contemplated scope of the business of the Company shall become the exclusive property of the Company for all countries. For the purpose of this clause, the expression 'The Company" shall in addition to Control Print (India) Limited mean and include other firm, person or company, subsidiary to or affiliated with Control Print (India) Limited. b) You shall for a minimum period of one year after leaving our employment not take any employment in any capacity including that of advisor/consultant with any person, firm, company or organization: nor form/promote any business/venture/trade/consultancy which is selling manufacturing, marketing or servicing any of the products, and/or services which are similar/comparable/competitive to the Company's products and/or services." (vii) The appellant's service engineers are also required to execute a bond where such restrictions are incorporated and content of such bond is quoted below: "5. I hereby confirm and undertake that a) I shall not, at any time during the continuance or after resignation/termination of my employment, divulge either directly or indirectly to any person, firm, company or organization nor use for myself and knowledge, information, formulae, processes, methods, compositions, ideas or documents, concerning the business and/or affairs of the Company or any of its dealings, transactions or affairs which I may acquire or have come to my knowledge, during the course of or incidental to my employment. Any invention, improvement or design conceived by me, which in your employment which is within the existing or contemplated scope of the business of the company shall become the exclusive property of the company for all purposes and for all countries. b) For a minimum period of one year after leaving your employment, I shall not take any employment in any capacity including that of advisor/consultant with any person, firm, company or organization nor form/promote any business/venture/trade/consultancy which is selling, manufacturing, marketing or servicing any of the products and/or services which are similar/comparable/competitive to the company's products and/or services." (viii) In 1996-1997. the appellant expanded its business into the Eastern India and opened its branch in Calcutta and for the above purpose published several advertisements offering employment to service engineers. Pursuant to such advertisement, many persons applied to be employed by the appellant. The respondent Nos. 1 and 2 also applied and on interview, they were selected on 22nd September, 1997 and 15th November, 1996 respectively. The respondent Nos. 1 and 2 accepted the terms of employment and executed the Bond as mentioned above. (ix) On completion of probation period, the service of each of the respondent Nos. 1 and 2 was confirmed and confirmation letters were accordingly issued. The respondent Nos. 1 and 2 accepted such confirmation without any protest. (x) During the course of their employment respondent Nos. 1 and 2 were promoted on several occasions and the former was ultimately made the Branch Service Manager and the latter, the Assistant Service Manager (Managerial Cadre). (xi) Since 1st April, 2004, the respondent No. 1 was working as the Branch Service Manager of the Kolkata Branch and by virtue of such employment he was looking after the entire operations of the appellant in the Eastern India. In the usual course of his official function, it was the duty of the respondent No. 1 to visit all customers of the appellant and to ensure that the appallant's customers were getting proper services and the annual maintenance contracts were duly performed and all the requirements of the appellant's customer were looked after. The respondent No. 1 was also responsible for the safe keeping and maintenance and upkeep of all the instruments and equipments, which the appellant used in its business including specialized tool kits imported/obtained by the company from Videojet. USA. These tools are not available in the market and are not ordinary articles of commerce. The aforesaid tool kits comprise of special tools, which are necessary for servicing, installing and/or maintaining the products of the appellatnt, which cannot be serviced and/or maintained without those tools. The respondent No. 1 was also in possession of various spare parts required for the Ink jet printers. (xii) The respondent No.2 was employed in the capacity of the Assistant Service Manager having considerable responsibility and having access to the aforesaid equipments, spare parts and also having access to all customers of the appellant. (xiii) The respondent Nos. 1 and 2 were also privy to and had access to information, formulae, process, method, composition, service manuals, technical communications, field bulletins, documents concerning the said equipments and/or the process of servicing and maintenance thereof. (xiv) The respondent Nos. 1 and 2 were also in possession of the data bank of the appellant which contains the entire data as to the installation base/customers of the appellant, their service history. The data bank also includes certain service manuals of the appellant's marking and coding machines, details of its spare parts containing all technical know-how necessary for repairing and servicing or maintaining the appellant's machines. (xv) During the course of their employment, the respondent Nos.1 and 2 received diverse nature of specialized training in respect of their work and in respect of marking and coding machines and/or parts, ink, make up cleaning solution, filters, maintenance and servicing thereof. (xvi) Suddenly, in the month of April-May. 2005. the respondent Nos. 1 and 2 left their services under the appellant without any explanation. The respondent No. 1, on 8th April, 2005 issued letter tendering his resignation with effect from 20th April, 2005. Similarly, the respondent No.2 sent the resignation letter on 23rd May, 2005. (xvii) In or around the last week of July, 2005, the appellant came to learn from some of its customers that the respondents Nos. 1 and 2 were engaged in a similar business under a deceptively similar trade, namely, Jet people, and on receiving such information, the appellant made enquiries and came to learn that the respondent Nos. 3 and 4 who are the wives of the respondent Nos. 1 and 2 respectively are being shown as having formed and constituted a partnership firm being respondent No. 5 and such firm is being really run by the respondent Nos. 1 and 2. (xviii) The respondent Nos. 1 and 2 through the respondent No. 5 are participating in business of selling, manufacturing and/or servicing, products services similar to and/or comparable with and/or competitive to the appellant business and/or services. The respondent Nos. 1 and 2 are purporting to render services and maintenance in respect of the appellant's machinery, which only the appellant is authorized or entitled to do. The appellant also has come to learn that the respondent Nos. 1 and 2 are attempting to procure and/or entice further customers of the appellant. (xix) The trade secrets of the appellant, which the respondent Nos. 1 and 2 in course of their employment have had access to and learnt, are summarized thus: (a) Mode and manner of servicing of Ink Jet Printer: (b) Use of the Tool kits required for servicing and repairing of Ink Jet Printer; (c) Plaintiffs data bank containing list of existing customers and prospective customers of Ink Jet Printers, consumables as also existing service agreements and prospective service agreements. (xx) The respondent Nos. 1 and 2 are representing that they shall be able to maintain and/or service the machineries supplied by the appellant by using the specialized tool kit, equipments, spares etc. which they have unlawfully retained in their possession. The respondent Nos. 1 and 2 have also illegally obtained and are utilizing appellant's data base which has particulars of its customers and by virtue virtue of those manuals and other secret information they have illegally started servicing and maintenance of plaintiff equipment. Hence the suit.
(3.) On the basis of the selfsame allegations, the appellant filed an application for temporary injunction thereby praying for respondents from acting in express breach of confidence contained in Service Contract and also from carrying on business directly or indirectly for sale and marketing of InkJet printers and consumables and parts thereof as well as servicing of the same.;