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 and 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 appellants 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 appellants 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 appellants business, the appellants employees and especially, the service engineers get personally acquainted with the appellants 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 appellants engineers in order to protect the appellants 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 Companys products and/or services. "

(vii) The appellants 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 companys 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 appallants customers were getting proper services and the annual maintenance contracts were duly performed and all the requirements of the appellants 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 appellants marking and coding machines, details of its spare parts containing all technical know-how necessary for repairing and servicing or maintaining the appellants 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 appellants 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 appellants 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.

(4) THE respondent No. 1 and 2 contested the aforesaid application by filing written objection thereby opposing the prayer of the appellant and their defence may be summed up thus:

1. Besides the appellant, there are many other business concerns, which are directly dealing with similar products, which are marketed and serviced by the appellant. Some of those direct competitors of the appellant are Domino Printech India Private limited. Image India Private Limited, Bradma Limited and Willet india Private Limited.

2. The appellant was just a dealer of Inkjet Printers and cousumables and spare parts sand they are not manufacturers and in such view of the matter, no confidential information is obtained or made available to the service engineers. No special knowledge was circulated to the service engineers or service managers and the respondents acquired the knowledge of servicing of Inkjet Printers and spares as they are persons with technical background and during the servicing of the printers, the service engineers consult the service manuals provided with the printers to the customers.

3. The service manual of the Videojet Inkjet printers is not a secret document and it is handed over to the purchasers of the said printers at the time of delivery of printers. At no point of time, any confidential matter of the appellant was discussed and disclosed to service engineers and no special and specialized training was imparted to the service engineers as alleged. The negative covenants incorporated in the service contract with the appellant and the service bonds are void and not binding upon the employees.

4. The negative covenant incorporated in the service contract of engineers appointed by the appellants are bad in law and void particularly with regard to restrictions of taking up any employment in any capacity for one year after leaving the service of the appellant.

(5) THE respondents are not in possession of any spare parts required for the Printers of Videojet and the tool kits of the appellant. The tool kits used by the appellant for servicing are not at all specialized and/or exclusive and those are available in the market and also supplied by other dealers/manufacturers of inkjet Printers including Inkjet Inc. in U. S. A.

(6) THE respondents are not dealing with the sale and manufacture of products of Videojet and it is the choice of the customers to obtain service from any person in the open market after the sale of the product by the Appellant. The Appellant cannot dictate the customers or the users of the printers with regard to the choice of spare parts and consumables as well as the service and maintenance of the Printers.

5. The learned Trial Judge on consideration of the materials on record came to the conclusion that the Appellants had failed to prove a prima facie case to have an order of injunction and that the alleged negative covenant recorded in the agreement of service with the respondent Nos. 1 and 2 was in violation of section 27 of the Contract act and was not enforceable. The learned Trial Judge, thus, rejected the application for temporary injunction.

6. Being dissatisfied, the plaintiffs have come up with the present first miscellaneous appeal.

(7) MR. Shaktinath Mukherjee, the learned senior advocate appearing on behalf of the appellants has at the very outset submitted that he does not want to press the prayer for injunction to the height made out in the application for temporary injunction before the learned Trial court but wanted to limit the prayer to this extent that the respondents should not be permitted to service the printers of Videojet. According to Mr. Mukherjee, the respondent Nos. 1 and 2 having acquired specialized knowledge as regards athe basic structure of the printers of the Videojet by virtue of their employment, they now cannot be permitted to service the Videojet Printers to the detriment of the interest of the Appellants. According to Mr. Mukherjee. for the purpose of servicing of the Videojet Printers, a special knowledge is required and the respondents in course of their employment acquired such knowledge. If those two respondents were not in the service of the appellant, Mr. Mukherjee continues, they could not gather such information and knowledge. After acquiring such knowledge, according to Mr. Mukherjee, they now cannot utilize the same to the prejudice of the appellant. Mr. Mukherjee further contends that although his client has not entered into agreement with the purchasers regarding post-servicing, they are entitled to have an order of injunction against the respondents so far the servicing of the Videojet machines are concerned. He, thus, prays for modification of the order impugned and for grant of injunction to this extent that the respondents should be restrained from serviciing the printers of the appellants Company.

(8) MR. Roy Chowdhury, the learned senior advocate appearing on behalf of the respondents, however, has opposed the aforesaid contentions of Mr. Mukherjee and has contended that the appellant could not disclose in the application for temporary injunction the details or even the type of special knowledge his clients have acquired in course of their employments. Mr. Roy Chowdhury submits that only a vague statement has been made in the application for injunction alleging that his clients got specialized knowledge or that there are special tools for those Printers. Mr. Roy Chowdhury called upon the appellant to disclose specifically what are the secret codes or secret tools not available to others and preserved by his clients.

(9) MR. Roy Chowdhury at the same time further contends that in view of the provisions contained in section 27 of the Contract Act, the learned Trial Judge rightly rejected the application for temporary injunction.

(10) IN view of the modified stand taken by Mr. Mukherjee appearing on behalf of the appellant, the only question that arises for determination in this appeal is whether the appellant is at least entitled to have an order of injunction restraining the respondent Nos. 1 and 2 from servicing the Printers of which the appellant is the sole distributor in India.

(11) AFTER hearing the learned counsel for the parties and after going through the aforesaid submissions advanced by the learned counsel for the parties we are of the view that in the arena of advance science there are certain fields where an employee can get a special knowledge by virtue of his engagement in course of employment which he could not have otherwise acquired and in those fields an employer can by agreement with his employee demand that after relinquishment of the job he would be restrained from utilizing such knowledge against the interest of the employer.

(12) IN the case before us. however, the appellant is not the manufacturer of Videojet Printers but only distributors. It is also admitted position that while selling those printers to the purchasers the appellant has not put any restrictions upon the purchasers for servicing those printers only through the appellant or its nominated agents but the purchasers are free to use and service the printers in accordance with their wish.

(13) IN our view, unless the appellant can prove to the satisfaction of the Court that the respondents really got certain secret information as regards those machines by virtue of their employement which are not available to any outsider, there is no scope of passing any interim order restraining the respondents from servicing the Videojet Printers. We have already pointed out that there is no restriction upon the purchasers in the matter of servicing those printers through anyone available in the market. The appellant could not disclose the particulars of the secret materials which the respondents possessed in course of their employment; on the other hand, from the assertions of the respondents we find that Videojet Printers gives specific booklets for their purchasers for the purpose of use, disclosing the ingredients of those Printes and such facts have not been disputed by the appellants.

(14) WE, therefore, find substance in the contention of Mr. Roy chowdhury that the Engineers by virtue of their basic knowledge of engineering and science can easily acquire such knowledge of servicing by mere reading of catalogue given to the purchasers by the appellant and by following such direction, or by virtue of their basic knowledge of science and engineering, an engineer like the respondents Nos. 1 and 2 can easily service the Printers distributed by the appellant. The position, however, would have been different if the appellant could disclose to us those secret tools in particular which the respondents have not returned after leaving the job as alleged in the application. No such material has been placed before this Court describing those items and showing demand of return of those tools from the respondents before institution of the suit.

(15) WE, therefore, are of the view that in the fact of the present case the appellant is not even entitled to get an order of injunction restraining the respondents from even servicing the Printers sold to different purchasers by the appellant. There is also no statutory protection available to the appellants, which can stand in the way of the respondents from servicing the printers sold by the appellants.

(16) THE appeal is. thus, devoid of any substance and is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed.