Soumen Sen, J.The plaintiff has filed this application principally against its ex-employees in respondent Nos. 1 to 5 praying, inter alia, for an order of injunction restraining the said respondents from divulging and/or using in any manner the petitioners computer database containing confidential informations and trade secrets and to procure a breach of contract of the plaintiff with its existing customers and/or suppliers.

2. The plaintiff manufactures and sells technologically advanced highly engineered products and equipments for power and process sector industries. The plaintiff is also a service provider to power and process industries. The plaintiff also imports and sells certain industrial products and provides installation, commissioning and maintenance of operation and technological services to power and process industries.

3. The respondent Nos. 1 to 5 are ex-officers of the plaintiff company. The plaintiff alleges that the respondent No. 6 is a company formed and/or run by the respondent Nos. 1 to 5 for carrying on competing business with the plaintiff.

4. The respondent Nos. 1, 2 and 5 as the General Manager and Deputy General Managers respectively, and the head of manufacturing control valves and equipments and spares respectively as well as sole person in charge of the product of Hora Pall, BPEG, Sky Climber being a principal of the petitioner was privy to all the trade secrets pertaining to manufacture as well as sales and marketing. The respondents had the future projections and strategic informations about prospective customers, technology and products. The respondent Nos. 1 and 2 had access to all secret technological know-how. The roles of the respondent Nos. 1 and 2 were of confidentiality and trust. While participating in Senior Management meeting, the respondent Nos. 1 and 2 had access to all discussions and decisions regarding various financial and business transactions of the organization. The said respondents being in charge of Sales and Marketing and in dealing with petitioners principals had information about the price at which goods were purchased and from whom they were purchased. The secret information about the way and from whom the petitioner sourced materials is a valuable asset for the petitioner. In it lies the petitioners competitive advantage which would be of substantial benefit to any of the petitioners competitors. The respondent Nos. 1 and 2 also had information and details of the logistic Vendors of the petitioner and at what price they provided the service and in course of their interaction with the vendors they got introduced to the concerned departments and officers of the vendor. Moreover, the respondent Nos. 3 and 4 as Manager Sales and Senior Engineer-Sales and Marketing also by reason of working under the respondent No. 1 had the benefit of all the informations gathered by the respondent Nos. 1 and 2 were also shared with the respondents. The respondent No. 4 was also independently entrusted with making purchase order and other documentation work. The petitioner has given particulars of the trade secrets and computer database and confidential information regarding the business of the petitioner of which each of the respondent Nos. 1 to 5 gained knowledge of and had access to during the course of employment. It is submitted that the said Schedule "D" contains trade secrets and Computer database stored in the computers in the form of files, programmes, know-how, formulae and the like which have been created by the petitioner as also customer details and details of petitioners principals. The petitioner generally purchases equipments from all over the world and especially abroad. Thereafter, the said equipments, which are all technologically advanced, are customized as per each clients specifications. The customization is done at the petitioners workshop at Sarsuna, Behala, Kolkata. The technology improvised and employed by the petitioner for such customization is then stored in the form of data, formulae, programmes and the like on the petitioners computer database. These technological data store on the petitioners database is one of the most valuable assets that the petitioner has. These technological data are also useful to meet the requirements of future clients. These valuable data were all available to all the respondents. The respondents had perpetual access to the technological data. The respondents had the petitioners password for accessing such data. These trade secrets and Computer database have been acquired and developed by the petitioner through close interaction of select executives of the petitioner with key personnel of each customer as well as prospective customers. To meet the petitioners principals as also prospective principals and suppliers of equipments, the petitioner had sent the respondent Nos. 1 to 3 and 5 abroad on several occasions. The respondents were introduced to the key personnel of the petitioners principals/suppliers as also prospective principals/suppliers. The respondent No. 4 was communicating with the foreign suppliers/principals in connection with customization of products to meet the petitioners customers requirements. The respondent No. 4 in course of such communication became closely acquainted with the petitioners suppliers/principals and key personnel.

5. In Paragraph 36 of the Petition, the petitioner has indicated the trade secrets which include its database incorporating the following:-

(a) List of all the customers and their key personnel.

(b) Names of the prospective customers of the petitioner including their key personnel.

(c) Specific requirements of each of the petitioners customers as also the likely requirements of each of the prospective customers, both technological as well as commercial.

(d) The technological database with specific reference to each of the petitioners clients as also prospective clients.

(e) The details of and personal acquaintanceship with the petitioners principals and strategic partners from whom the petitioner purchased equipment and from whom the petitioner has derived technological data as also details of the agreements/commercial terms which the petitioner has with these concerns.

6. With a view to make employees accountable for their acts and conduct and to preserve and safeguard the secrecy, on 7th August, 2012 the petitioner updated its existing code of conduct/human resource policy which mandates that all employees of the company shall strictly comply with and adhere to such code of conduct/human resource policy of the petitioner. The said circular was followed by a further circular dated 8th August, 2012 which was issued in furtherance to the circular dated 7th August, 2012 it is stated that in future each employee would be bound by the terms of the code of conduct irrespective of whether they execute a document recording this fact or not. Further continuance in employment and receipt of salary from the company would bind each of the employees to the terms of the code of conduct (revised on 7th August, 2012).

7. Mr. Abhrajit Mitra, the learned Senior Counsel appearing with Mr. Anirban Roy, advocate submits that under Clause 11, the circular dated 7th August, 2012, the respondents are required and obliged to keep confidential all the information and material provided to the employees by the company or by the clients of the company concerning their affairs in order to enable the company to perform the service. The said respondents also not to divulge or disseminate information to any unauthorized person during the period of their employment or even afterwards by word of mouth or otherwise, or particulars or details of the petitioners business processes, technical know-how, security arrangements, administrative and/or organizational matters of a confidential/secret nature, which the employee may have the privilege of knowing only by virtue of being an employee of the petitioner. The termination of employment and/or resignation from the company in terms of Clause 11 of the said circular dated 7th August, 2012 an employee is debarred from starting any enterprise or a similar organization or join any such or similar organization, which is in direct competition with the business of the company for three years after such termination/resignation. It is submitted that the respondents continued to remain in the employment of the petitioner after the issuance of the said circular and had received their salaries till they resigned from their offices. In view of the binding nature of the clauses or revised code of conduct and the subsequent circular dated 8th August, 2012, the said ex-employees are obliged by the clauses of the said code of conduct and the said ex-employees cannot act in derogation therewith. It is submitted that during the continuance of their employment with the plaintiff, the respondent Nos. 1 to 5 systematically tried to remove the said database to their personal Computers for being used in future in course of their business. The said respondents illegally and fraudulently are trying to divert the business of the plaintiff and its clientele. The said respondents before resigning formed a partnership firm in October, 2013 and thereafter formed the company being respondent No. 6 in December, 2013. The said company is carrying on a business in direct competition with the plaintiff. The petitioner has about 200 numbers of important suppliers and customers/clients. These are regular clients of the petitioner who have been working with the petitioner for many years and placing orders from time to time. These clients have certain identified requirements in respect of highly engineered technologically advanced products and services, which only the petitioner can provide throughout India. The technological database and clients database are intermingled. The names and details of the petitioners clients are part of the same database. The names of the clients key personnel, the requirements of each client, both technological as also commercial, are stored in database. The same database also contains the requirements of the market in general, which is the result of the continuous market survey that the petitioner carries out, the names and details of prospective clients and the likely requirements of these clients. These are confidential records of the petitioner.

8. It is submitted that by December, 2013, the said respondent Nos. 1 to 5 have decided to resign from the plaintiff and start business in direct competition with the plaintiff. The same would be evident from the events that had taken place between December, 2013 and May, 2014. During the aforesaid period, the respondent Nos. 1, 3 and 5 in quick succession submitted their respective separate letters of resignation giving 30 days notice of cessation of their employment. The first employee to resign was the respondent No. 2 on 31st December, 2013 followed by the respondent Nos. 3, 4 and 5 on different dates between March, 2014 and May, 2014. On 28th March, 2014 the respondent No. 1 from the portal of the petitioner transferred valuable data to his personal e-mail address. This relates to an important query raised by Rajasthan Rajya Vidyut Utpadan Nigam Limited, Kalisindh Thermal Power Project, Jhalawar was made to the plaintiff. Subsequently, the respondent No. 1 approached one of the Principal of the petitioner being N.V. Sky Climber Europe S.A. Belgium and disclosed the future plan of action of the respondents with regard to its business in competition with the petitioner company. Subsequently, on 5th April, 2014 confidential information and data along with client details of the plaintiff was forwarded by the respondent No. 4 by an e-mail to the respondent No. 1. Thereafter, on 1st May, 2014, after hijacking all the information, the respondent No. 4 resigned from the plaintiff company. It is submitted that the respondent No. 2 is the protagonist of the whole episode leading to the present suit. He was the first to leave the plaintiff company on 31st December, 2013 and thereafter with the aid of the other respondents systematically procured the data and confidential information and solicited the clientele of the plaintiff with a view to procure a breach of business and diversions of business from the plaintiff to the respondent.

9. Mr. Mitra submits that an ad-interim order was passed on 6th June, 2014 restraining the respondents from taking any steps so as to cause breach of contract of the plaintiff with the third parties or to take any steps to solicit their clientele. Since the said respondents acted in breach, a contempt proceeding was initiated in which the respondent No. 2 was directed to file an undertaking in the form of an affidavit to the following effect:-

i) He will not act as a Selling Agent of Hora, Germany or Sales Representative;

ii) He will not try to entice the customers of the plaintiff;

iii) He will not cause any breach of contract of the plaintiff with the third parties.

10. The respondents are bound by the said undertaking.

11. It is submitted that the said order is still subsisting. It is submitted that the said respondents are joint tortfeasors and are inducing the clients of the plaintiff to break the existing contract and to enter into a contract with the said respondents. It is submitted that the plaintiff over the years has acquired goodwill and has developed a database of its clientele, which the said respondents are now intending to exploit. The learned senior Counsel has relied upon a Single Bench decision of this Honble Court in Embee Software Private Ltd. Vs. Samir Kumar Shaw and Others, AIR 2012 Cal 141 [LQ/CalHC/2012/265] : (2012) 3 CHN 250 [LQ/CalHC/2012/265] for the proposition that the non-solicitation clause does not amount to restraint of trade, business or profession and would not be hit by Section 27 of the Indian Contract Act, 1872 as being void. It is submitted that inducing a person to break a contract with another or preventing a person from entering into a contract with another is a tort and cannot be practiced by an ex-employee to damage the business of the ex-employer. Such a tort is capable of being committed by an ex-employee despite the protection granted to him by Section 27 of the Contract Act. The law would not permit an ex-employee irrespective of non-solicitation clause in the contract of employment to induce breaking a contractual relationship and damage business of the ex-employer.

12. The learned senior Counsel has also relied upon a decision of this Court in Fairfest Media Ltd. Vs. ITE Group PLC reported at 2015 SCC OnLine Cal 23 dated 8th January, 2015 and submitted that the customer list and some of the information in this regard was held to be of confidential nature as being potentially damaging if a competitor obtains such information and utilize the same to the detriment of the giver of the information. Mr. Mitra has also relied upon Personal Management Solutions Limited Vs. Brakes Bros. Limited reported at (2014) EWHC 3495 (QB) and submitted that in a situation like this, law would require to give a remedy to protect people from being taken advantage of by those they have trusted with confidential information. It is submitted that once the plaintiff has been able to establish that over the years, the plaintiff had developed a technological database, the ex-employee cannot take advantage and exploit the said data base after their resignation. It is submitted that the particulars of the breach of confidential information and trade secrets have been given in the petition and it would appear that the said respondents by reason of their employment had access to data base and trying to exploit such informations with the improper motive and oblique purpose.

13. Per contra, Mr. Ratnanko Banerjee, learned senior Counsel appearing on behalf of the respondent submits that the allegation made on breach of confidential information and/or trade secrets by the plaintiff is baseless. The names of suppliers and names of customers of the plaintiff can never be part of trade secret and confidential information. The plaintiff is a supplier of parts to electricity and power generation companies in India who generally procure supplies through process of tendering. Any supplier who offers products can supply such products. The plaintiff cannot claim and legally does not have any right to claim exclusivity either with regard to the suppliers or customers. It is submitted that the plaintiff has not been able to show existence of any confidential information or trade secrets. The employment terms between the plaintiff and the respondents do not contain term for protection of confidential information. The plaintiff has also failed to show that as to how the respondents have used any confidential information gained from the plaintiff for business purposes of the respondents. The respondents are free to carry on their trade and profession and any restraint term in the contract or otherwise would be in violation of Section 27 of the Contract Act. Any terms of contract regarding not carrying on similar business during the period of employment would be void after such employment ceases. There is no instance of any breach of contract made out by the plaintiff against the respondents. To procure breach of contract is a branch of tort and gives rise to a cause of action only when plaintiff is able to demonstrate that the respondents have through unlawful means prevented a third party from performing his contractual terms with the plaintiff. This cause of action cannot grant the plaintiff a right to restrain the respondents from entering into any new contract with the plaintiffs existing customers for supply of products. Such an order would be against public domain and would stop any person from exercising a right to freedom of contract. The learned senior Counsel has relied upon the decision of the Honble Supreme Court in Percept DMark (India) Pvt. Ltd. Vs. Zaheer Khan and Another, AIR 2006 SC 3426 [LQ/SC/2006/242] : (2006) 2 ARBLR 34 [LQ/SC/2006/242] : (2006) 5 CompLJ 224 [LQ/SC/2006/242] : (2006) 1 CTLJ 100 [LQ/SC/2006/242] : (2006) 11 JT 596 : (2006) 3 SCALE 324 [LQ/SC/2006/242] : (2006) 4 SCC 227 [LQ/SC/2006/242] : (2006) AIRSCW 1751 : (2006) 3 Supreme 186 that unless it falls within the strict exception of Section 27 of the Contract Act, such restrictive terms would be void and unenforceable.

14. The principal defenses appear to be that the information which the plaintiff is claiming to be confidential in nature and trade secrets are in public domain, in any event, the restrictive covenant contained in the service contract is void being hit by Section 27 of the Contract Act.

15. The object behind Section 27 is to uphold freedom of trade. It has been said in Oakes and Co. Vs. Jackson reported at ILR 1876 (1) Mad 134 that trade in India is in its infancy and the legislature may be wished to make the smallest number of exceptions to the rule against contracts whereby trade may have restrained. Initially, there were three exceptions. However, exception Nos. 2 and 3 are repealed by Partnership Act. In the instant case, however, we are not concerned with the exception to the said section.

16. The law on restraint of trade as laid down in Section 27 of the Indian Contract Act is undoubtedly dissimilar to the most modern phase of the English Rule. The Indian law is very strict and invalidates many agreements which would be allowed by English Common Law as it does away with the distinction observed in English Cases between partial and total restraint of trade and makes all contracts falling within its terms void unless they fall within certain necessary exceptions. Whether the restraint is general or partial, qualified or unqualified, if it is in the nature of a restraint of trade it is void.

17. This distinction was noticed by this Court in Embee Software (supra). In Percept D Mark (supra) the Honble Supreme Court observed that the interpretation given by Couch, C.J. in Madhub Chunder Poramanick Vs. Rajcoomar Doss and Others has been uniformly and consistently followed from 1874 by all the High Courts in India and has been expressly approved by the Apex Court in Niranjan Shankar Golikari Vs. The Century Spinning and Mfg. Co. Ltd., AIR 1967 SC 1098 [LQ/SC/1967/10] : (1967) 14 FLR 337 [LQ/SC/1967/10] : (1967) 1 LLJ 740 [LQ/SC/1967/10] : (1967) 2 SCR 378 . [LQ/SC/1967/10] The Honble Supreme Court did not find any necessity in Percept D Mark (supra) to reconsider the said 132 years old interpretation and observed that such an exercise is not required to be undertaken in the said interlocutory proceedings. It was stated that the legal position clearly crystallized in our country that while construing the provisions of Section 27 of the Contract Act, neither the test of reasonableness nor the principle of restraint being partial is applicable, unless it falls within express exception engrafted in Section 27. In the said decision, the Supreme Court was considering the legal position with regard to post-contract covenants or restrictions contained in an agreement. The terms of the agreement were expressly limited to three years unless extended by mutual agreement. Clause 31(b) of the said Contract provides for an obligation on the respondent No. 1 to give an opportunity to the appellant to match the offer if any received by the respondent No. 1 from the third party. The said Clause does not per se restrict or prohibit respondent No. 1 to enter into any contract with the third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of the respondent No. 1 which was gradually built up by the appellant. It was held that the said Clause does not restrict the right of the respondent No. 1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to mach the offer of the third party from whom respondent No. 1 would receive any offer. The respondent No. 1 would be free to contract with such third party. The restriction if any was on account of voluntary obligations undertaken by the respondent No. 1 and assurances made by him to the appellant wherefore the respondent No. 1 could not be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. It was held that Clause 31(b) was to operate only during the term that is from the conclusion of the first negotiation period in Clause 31(a) on 29th July, 2003 till 29th October, 2003. However, the moment it is sought to be enforced beyond the term and expiry of the agreement, it becomes prima facie void. The said judgment, however, did not deal with confidential information and/or trade secret. The said case is clearly distinguishable on facts. However, the ratio of the said judgment in so far as it held that any covenant or restriction beyond the period of employment is void is equally applicable to the instant case. In my view, Mr. Banerjee is correct in contending that any restrictive clause prohibiting the respondents to carry on business same or similar in nature would be void and hit by Section 27 of the Indian Contract Act as our law has not advanced as much as the English Common Law over the years. The time possibly has come to have a re-look at Section 27 of the Indian Contract Act since the time has changed and there is a necessity to impose some restrictions and recognize negative covenants in service contracts especially where it involves specialized knowledge. It must live up to the present need. While freedom of contract and trade needs to be upheld, at the same time it needs to be balanced. No one should be allowed to take advantage of the trade secrets and confidential informations developed by an individual and use it for his own gain and when confronted take the shelter of this section. The confidential informations and trade secrets are required to be protected.

18. The section recognizes the right of an individual to carry on lawful profession, trade or business of any kind and any agreement by which any one is restrained from exercising any such rights is to that extent void. Even though the service contract contains the restrictive clause restraining an employee from leaving service of the employer to consider as a negative covenant still it can be enforced since negative covenants operate through the period of contract of employment when the employee is bound to serve his employer exclusively or generally. These are not regarded restraint of trade and, therefore, do not fall under this section. A service covenant extended beyond the termination of the service under our law is void. Any restraint imposed by the employer on the employee would prima facie be illegal and void as being directly hit by Section 27 needs to operate after the expiry of the period of service contract.

19. The issue that has fallen for consideration in this matter is whether the respondent Nos. 1 to 5 as ex-employees of the plaintiff could be in trade which is in direct competition with the plaintiff and during the course of such trade utilize the trade secrets and confidential informations acquired during their course of employment.

20. In Chitty on Contract, 25th Edn, Vol, 1, Para 1105, p.594 it is stated that the doctrine of restraint of trade has always been applied to covenants contained in contract of employment and such covenants are being viewed by the Courts much more jealously than the other of the principal traditional categories of covenant to which the doctrine applies, namely, covenants between the vendor and purchaser of a business.

21. In Trietals Law of Contract, 11th Edn., pp.456-457 it is stated that unlike the purchaser of a business, an employer cannot protect himself by a covenant in restraint of trade against his former employees competition as such. He cannot restrain the employee from using his own skill even though that skill was learnt from the employer. To establish that he has an interest meriting protection, the employer must show either that the employee has learnt the employers trade secrets, or that he has acquired influence over the employers clients or customers. Trade secrets include secret formulae or processes, and certain other similar kinds of highly confidential information (but no information which is merely confidential in the sense that the employee must not disclose it during employment). It used to be thought that know-how could not be protected but now that such expertise has become a saleable commodity; it is likely that Courts will recognize it as an interest meriting protection. In respect of clients or customers, the employer is entitled to protection only if the nature of the employment was such as to enable the employee to acquire influence over them, e.g. where the employee was a solicitors managing clerk, or a hairdressers assistant, but not where he was a factory worker, who never came into contact with customers. If the employee comes into contact with some customers, the employer may be able to protect himself also in respect of some others.

22. In W.C. Leng and Co. v. Andrews reported at 1909 (1) Ch 763 it is stated:-

"The doctrine does not mean that an employer can prevent his employee from using the skill and knowledge in his trade or profession which he has learnt in the course of his employment by means of directions or instructions from the employer. That information and that additional skill he is entitled to use for the benefit of himself and the benefit of the public who gain the advantage of his having such admirable instructions. The case in which the Court interferes for the purpose of protection is where use is made not of the skill which the man may have acquired, but of the secrets of the trade or profession which he had no right to reveal to anyone else - matters which depend to some extent on good faith........"

23. In Faccenda Chicken Ltd. v. Fowler reported at 1986 (1) All ER 617 , the Court of Appeal held that the duty of fidelity owed by an employee to a former employer was not as great as the duty implied in the employees contract of employment and owed during the subsistence of the employment, when use of disclosure of confidential information, even though it did not amount to a trade secret, would be a breach of a duty of good faith and accordingly, confidential information concerning an employers business acquired by an employee in the course of his employment could be used by the employee after his employment had ceased unless the information was classed as a trade secret or was so confidential that it required the same protection as a trade secret.

24. The respondents have filed two sets of affidavits. The respondent No. 2 in his affidavit has stated that under the contract of employment there was no restriction upon the said respondent to carry on a business in competition with the plaintiff after cessation of employment nor there was any bar imposed as to prevent an employee from starting any business or joining a similar organization which is in direct competition with the business of the company for three years after such termination and/or resignation. It is stated that at the time of joining the organization, there was no human resource policy and it was only after a considerable period of time the petitioner felt the necessity to have such terms and obligations incorporated in writing. The said respondents denied to have accepted the said terms and conditions in course of his employment. It is stated that the details of trade secrets of the petitioner disclosed in the petition would demonstrate that the said informations are easily available in the public domain and such informations cannot be said to be a trade secret. It is stated that the Schedule "D" annexed to the petition would show that none of the alleged trade secrets and computer database of the petitioner are confidential information or not available in the public domain. The said respondents denied to have acquired any special knowledge about any trade secret of the petitioner during his visit abroad or in India. It is submitted that even though the petitioner has a manufacturing unit at Behala, the respondent is not in the business of manufacture of any item and, therefore, the respondents cannot be in direct competition with that of the petitioner. It is submitted that the list of customers annexed to the petition cannot be within the exclusive domain of the petitioner and the petitioner cannot claim right over such list of prospective customers. In dealing with the allegations made in the petition about removal of information and storing of such information in the personal laptops of the said respondents, it is alleged that at the time when the respondent No. 1 was in service of the petitioner, the respondent had to communicate with the customers and principals of the petitioner. Inasmuch as most of the principals of the petitioner were located abroad, it was not possible for the respondent No. 1 to communicate with such principals only during the office hours. Therefore, the respondents used to communicate with such principals at night as a result of which it was necessary for the respondent No. 1 to use the personal e-mail account for such communication. It is stated that the business carried on by the petitioner and the respondent No. 6 is different in nature and, accordingly, there cannot be any question of respondents causing any prejudice to the business of the petitioner. In the affidavit filed by the respondent Nos. 1, 4, 5 and 6 apart from adopting the averments made by the respondent No. 2, it is stated that the respondents are not in possession of any trade secret of the petitioner or are carrying on any business similar to the petitioner. The respondents have further stated that they are not using any confidential information that they might have acquired during the service of the petitioner and the onus is on the petitioner to prove that the informations being used by the respondents are its exclusive property and not available in the public domain.

25. There is no categorical assertion in the said affidavit that the respondents did not acquire any confidential information and/or trade secrets during their course of employment. In fact, the respondents would be unable to say so having regard to the fact that the documents disclosed in this proceeding would show that the said respondents were trying to set up a business and operate in the same field and for that purposes the said respondents were communicating with the suppliers and principals of the plaintiff. The respondents did not say that whatever informations and database to which they had access to and the informations they gathered and came to possess during their course of employment were either destroyed or returned or not being utilized. On the contrary, the e-mail dated 4th April, 2014 which was issued few weeks prior to the resignation of the respondent No. 4 who subsequently joined the respondent No. 6, shows the respondent No. 6 was incorporated on 21st October, 2013 by a team of engineers which include the respondent Nos. 2 and 3. It would appear from the said e-mail that the said company was trying to expand the business with their associates/principals in power process as well as new application areas with the expertise, experience, knowledge and customer network that the said persons had gathered in last 20 years from the said industry. The said e-mail refers to the respondent No. 4 who by that time started working as a part-time employee of the respondent No. 6 from 1st April, 2014 till end of May, 2014 and thereafter from first week of June, 2014 she would be joining the said organization as a full-timer. The said email also refers to the discussion that the respondent No. 2 had with Mr. Iftikar of Sky Climber, when request was made for certain financial assistance from Sky Climber in order to enable the respondents to expand their business and to serve the said foreign company in a better way which goes to show that their nature of employment was such as to enable them to acquire influence over the customers and suppliers of the plaintiff. The crucial sentence in the said e-mail which tilted in favour of the plaintiff and against the respondents is the last sentence of the first page of the e-mail at page 126 which reads:-

"At present, we are working with few live cases/opportunities of Sky Climber Systems and Spares with support from Sky Climber (initially on case to case basis until decision has been made to shift complete business from HSS to ABSR)"

26. Thereafter, a list of buyers with equipment details were mentioned. The first buyer in the list is Globe Engineering. The said firm appears to have been authorized by the respondent No. 3 on behalf of the plaintiff to interact with Tamil Nadu Electricity Board (TNEB) and its allied plants all over Tamil Nadu and submit offers and order execution for products and spares business of the plaintiff. It was confirmed that all equipments to be supplied by Globe Engineering would be technically manufactured by Sky Climber. The authorization was to remain valid till 31st March, 2014. The respondent No. 3 resigned on 19th February, 2014. Mr. Banerjee, anticipating that the said e-mail is prejudicial, contended that the said communication cannot give a cause of action for the suit unless it is demonstrated that by reason of such communication Sky Climber has terminated the existing contract. Mere solicitation or enticement does not give any cause of action unless it is accompanied by an actual breach. It is submitted in this case that the plaintiff has failed to establish that any third party has terminated the existing arrangement and/or agreement with the plaintiff. The respondents cannot deny that they in the course of employment had developed proximity with the officials of Sky Climber and were in a position to influence them. The respondents have approached Sky Climber with a view to "shift complete business of HSS to ABSR". The said respondents initially in October, 2013 formed a partnership firm with the same object. In fact, systematically they have over a period of time transferred such data and informations to their personal laptops to be utilized later for their own business.

27. The action is based on an apprehended breach. The plaintiff has been able to demonstrate that there is a basis of a genuine apprehension that the said respondents as ex-employees are going to part with, divulge or to utilize the confidential informations and trade secrets in course of their business. In a quia timet action of this nature, the Court is required to find out if such apprehension is genuine and the plaintiff is able to make out a strong prima facie case. The expression "quia timet" means "since he fears". The application for temporary injunction under Order 39 Rule 1 is in the nature of a quia timet action. The plaintiff in such an action would be required to prove that there is an imminent danger of a substantial kind or that an apprehension of injury, if it does come, will be irreparable and the compensation of money would be inadequate. In the instant case, if the plaintiff is allowed to wait till the actual damage is caused and in the process the respondents gained an unfair advantage in first procuring a breach of contract and secondly to make unlawful gains and unjust enrichment by utilizing the confidential informations and trade secrets, the damage that the plaintiff would likely to suffer could not be compensated in terms of money. In such a situation, equity would step in and prevent any damage being caused to the existing business of the plaintiff. Mr. Banerjee would submit that the gains of learning would be an asset acquired by applying ones own intelligence and skill and the Court would be extremely chary to prevent a person from using such gains of learning. Had it been only restricted to gains of learning and not of utilizing confidential informations and trade secrets, I would have declined to pass any order in favour of the plaintiff. The respondents are using such confidential informations and trade secrets which they have no right to reveal to anyone else or utilize it to the detriment of the plaintiff. The formation of the partnership firm followed by resignations of the respondents in quick succession sharing informations with the third parties in between with a clear object to cause diversion of the business from the clients of the plaintiff which includes Hora clearly shows that the respondents seek to utilize those trade secrets for their own advantage. The said respondents would not have known those entities and their requirements and other details of the trade without being in the employment of the said plaintiff.

28. It is by reason of their employment with the petitioner and by reason of the dealings, transactions and interactions, the said respondents became acquainted with the officials of Sky Climber and they knew precisely the requirements of the Sky Climber. The contents and tenor of the said e-mail would show that the said respondents were soliciting business from the said Sky Climber and were inducing Sky Climber to transfer all their businesses to the respondents. The respondents by reason of their employment were in possession of all the confidential informations and trade secrets such as prices, clientele, database, the exact requirements and other confidential informations attached to the trade which the said respondents are not entitled to reveal. There cannot be any doubt that the informations the said respondents are in possession of and are being utilized are confidential in nature and such informations the plaintiff had shared with the said respondents under circumstances which established confidentiality, that is to say, the plaintiff had reposed faith and trust on the said respondents in sharing such information with the said respondents relating to the conduct of business to be solely utilized for the business of the plaintiff. The respondent No. 2 has explicitly stated in the said email that the said respondent No. 6 wants to acquire the business which Sky Climber had with the plaintiff. That the said respondents were influencing the customers of the plaintiff which is likely to result in diversion of business as also breach of the existing contract entitles the plaintiff to have the equitable relief.

29. Determining whether information is confidential is dependent upon several factors. In Saltman Engineering Co. v. Campbell Engineering Co. Ltd. reported at 1963 (3) All ER 413 the Court of Appeal held that the "confidential" information: "must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker on materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process".

30. The existence of irreparable harm is an essential consideration for a court in determining whether to award an injunction. Plaintiff would commonly claim that when confidential information is disseminated or trade secrets are lost, so too will be its competitive advantage.

31. The dissemination and/or sharing of any confidential information is liable to cause harm which does not involve proof of actual harm or special damage.

32. In Saltman Case (supra) it was held that the maintenance of secrecy, according to the circumstances in any given case, either rests on the principles of equity, that is to say the application by the court of the need for conscientiousness in the course of conduct, or by the common law action for breach of confidence, which is in effect a breach of contract.

33. A trade secret or a business secret may relate to financial arrangement, the customer list of a trader and some of the informations in this regard would be of a highly confidential nature as being potentially damaging if a competitor obtained such information and utilized the same to the detriment of the giver of the information. Business information such as cost and pricing, projected capital investments, inventory marketing strategies and customers list may qualify as his trade secrets. The Court needs to find out if the informations that were acquired during the course of their employment are now being used as the spring board to enable the said respondents to exploit such database in the course of their business.

34. Since I have held that the said respondents have acted in breach and are in the process of utilizing such trade secrets and confidential informations the said respondents are restrained from acting as a selling agent of Hora, Germany or Sales representatives for three years from January, 2014. The said respondents shall not procure any breach of any existing contract of the plaintiff with the third parties. This order, however, shall not prevent the respondents from carrying any business, which may be same and/or similar to the plaintiff without using and/or utilizing the database and trade secrets of the plaintiff in course of their business.

35. The application succeeds.

36. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.