Embee Software Pvt. Ltd. v. Samir Kumar Shaw & Ors.
In the High Court of Calcutta
GA 2171/2012 with CS 77/2012
Before Justice Soumen Sen
Decided on August 19, 2014

Relevancy of the Case: Adding a former employee as a defendant in a civil suit for misusing trade secrets and copyright

Relevant Facts of the Case

• Due to the initial lack of evidence, the plaintiff had not included one Zulfikar Ahmed as a party in the plaint. It has moved the present application to amend the plaint and add him as the fifth defendant.
• After leaving the plaintiff company in November 2011, he joined RP Info Systems Limited in or about February 2012. His new employer is in direct competition with the plaintiff’s business.

Prominent Arguments by the Advocates

The petitioner’s (the plaintiff company’s) counsel:

• It has found evidence against the proposed fifth defendant for misusing its trade secrets and copyright in computer programs. He colluded with defendants 1 to 3 and was responsible for financial irregularities.
• He also joined a company called Ontrack Systems Limited, which carried on the same business as the petitioner. He approached the petitioner’s regular customers to induce them to obtain services from his new company.
• Due to these reasons, the cause of action of the petitioner against him arose out of the same transaction as that of other defendants.

The respondent’s counsel:

• The proposed amendment alleges a distinct and separate cause of action. Allowing the application to amend the plaint would result in a misjoinder of parties.
• The petitioner’s application is frivolous as it had an active knowledge of the facts it sought to add via the amended plaint.

Opinion of the Bench

• There appears to be a direct nexus between defendants 1 to 3 and the proposed fifth defendant. There is a common thread here, i.e., parting away with the petitioner’s thread secrets.

Final Decision

• The court allowed the petitioner’s application, thereby allowing it to add the fifth defendant to the suit.