TMI Blog1999 (7) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... iffs are jointly referred as Pepsi and the defendants as Coke 4. It is alleged that main competitor of Pepsi in the soft drink beverage business in Coke. In India also, the main business rivals of the plaintiffs are the defendants, Coke. It is incorporated in the plaint that the soft drink business worldwide is extremely competitive and the business rivalry between Pepsi and Coke is fairly intense all over. Both the group of companies spend a large amount of money time and efforts to protect and develop their respective business interests. In India also, both Pepsi and Coke have spent a considerable amount of money on advertising and marketing of their products. 5. It is incorporated in the plaint that till recently these actions of aggressive sales, promotion and advertising were within the legal parameters and within acceptable worldwide and Indian marketing practices. However, over the past six months the plaintiffs have found that the defendants have been resorting not only to unethical business practices, but the defendants' actions in most cases constitute tortious interference in the business of the plaintiffs. 6. It is further mentioned in the plaint that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous locations all over India. It is alleged that in furtherance to the conspiracy, Coke started approaching the employees of Pepsi with inducements to terminate their existing contracts with Pepsi and enter into an employment contract with Coke. It is further mentioned that in certain cases Coke has successfully approached and induced some of Pepsi's employees into illegally terminating their existing contracts and entering into new employment contracts with coke. It is also incorporated in the plaint that initially these approaches were sporadic but over the last six months, it is clear that Coke has changed its strategy and has now decided to consciously target and approach the key employees of Pepsi at various locations in India. In the plaint, details of the six officials of Pepsi have been given, who were successfully approached by Coke and induced into terminating their employment contracts and confidentiality undertakings with Pepsi. 9. It is incorporated in the plaint that in or around December 1997 Pepsi approached one of the Territory Development Manager of the Pepsi in Kanpur, Mr. Kochin Wu. It is mentioned that Coke had approached Mr.Wu with and offer of increasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade has to be regularly serviced to ensure adequate supplies of the products and to maintain market share. This onerous responsibility lies with the sales team. Accordingly, in the event Pepsi was to lose the entire sales team as was sought to be achieved by Coke in Kanpur, the loss and damage would be much greater than the mere loss of money spent on training of the sales personnel. The loss would be in terms of loss of time involved in replacing the sales team and consequent loss of business in the meanwhile. 15. It is also alleged that Goa Bottling Private Ltd. was earlier the franchisee bottlers of Coke with manufacturing facilities located in Goa and was servicing the Goa territory. The existing franchise contract between Goa Bottling Company and Coke terminated in accordance with the terms thereof on 22.11.1997. Upon the termination of the existing contract with Coke, Goa Bottling Company commenced production and distribution of Pepsi with effect from 23.11.1997. It is also mentioned that the entire sales team of Goa Bottling Company, comprising of 61 sales staff resigned en bloc from the employment with Goa Bottling Company on 21.11.1997 and took up employment with Cok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence in the business of Pepsi. Pepsi had also mentioned that plaintiff No.3 had an agreement with one Shrinathji Sales for distribution of Pepsi products in various long distance trains, emanating out of Ahmedabad Railway station. It is alleged that in March 1998, the officials of Coke, approached the said distribution partner of Pepsi and offered to pay an amount of ₹ 25 lakhs plus for the fulfillment of any other requirements of the distribution partner in consideration of the said distribution partner breaking his contract with Pepsi. However, the said distribution partner refused the offer and wrote to Pepsi vide letter dated 9.3.1998 informing it of the incident. 19. It is stated that Pepsi had an exclusive agreement with Hyatt Regency of New Delhi, that it would use only the Pepsi products. It was a fixed term contract and the hotel could not terminate the said agreement. It is further stated that at the behest of Coke, Hotel Hyatt Regency, terminated the said contract with Pepsi. 20. On the strength of the aforesaid sequence of events Pepsi tried to establish a prima facie case that Coke had offered inducements to various persons to breach their exiting contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that Pepsi has suppressed the material facts and has based the plaint on incorrect facts. In the written statements it is also mentioned that one Me. Gaurav Duggal was given a letter of release by Pepsi and it was only after this, he joined the employment of defendant No.8. The plaintiffs have suppressed this material fact from this Court. Similarly, another example was also mentioned in which Mr. Johnny George joined the employment of defendant No.8 in response to a public advertisement dated 18.12.1996. Similarly Mr. Jitendra Nayyar, whom the defendants are alleged to have induced into breaking his contract with Pepsi also left the plaintiff's employment in December 1995 and joined Ranbaxy Laboratories, where he worked from January 1996 to December 1996. It was only after this, that he joined the employment of defendant No.8 on 6.1.1997. Similarly Mr. Sailesh Joshi and Mr. Sushil Kumar Jain joined defendant Nos. 5 6 respectively, only after completing their notice period term of their contract of employment. It is also mentioned in the written statements that the true intent and purpose of this suit was to secure the enforcement of a term entered into by the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed to injure another. No wrong is otherwise committed and no action will lie where the real purpose is to advance the business interests of the defendants, although a damage may ensue to the plaintiffs. 28. As far as the tort of inducement of breach of contract is concerned, it is submitted that the tort is committed only where the alleged tortfeasor approaches the contractor, or where the contract is not terminable, or where the means are unlawful or where the predominant motive is to injure the other party to the contract. It is submitted that the allegations contained in the plaint, do not satisfy any of the requirements to justify the complaint that the answering defendant or any of the other defendants have committed the tort of inducement of breach of the contract. 29. In the written statements the defendants have denied that they have interfered with contractual obligations of the employees of the plaintiffs. It is submitted on behalf of the defendants that some of the reliefs prayed for, are by their very nature extremely wide and not cannot and ought not to be granted. It is further submitted that the Courts would only grant reliefs as would be just and proper in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written statements that the answering defendant and other defendant companies are furthering their business interests by employing only such number of people as they need and adopting such measures as are common to all business establishments. It is further mentioned that the defendants had no intention to damage the business interests of the plaintiffs. It is also incorporated that the plaintiffs are apprehensive of meeting stiff competition, and precisely for that reason the plaintiffs have filed the present suit, which is nothing but an attempt to stifle healthy competition. 34. The plaintiffs cannot have any grievance because the defendant companies are entitled to further improve their own business interests. The plaintiff, (a leading rival as per own admission in the market), cannot have a grievance, even if its market share falls or it is removed out of the competition altogether. It is also incorporated that defendants 1 to 7 have invested nearly ₹ 900 Crores till date, in furtherance of their business interests. Therefore, it is clear that the defendant companies have been accentuated by their interests of furthering their business and certainly not with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited who forwarded a copy of defendant No.14's resume along with a request that defendant No.14 be considered for a job with the answering defendant. 2) Defendant No.14 met with executives of the answering defend ant in the first week of September 1997 and had further interviews with senior executives of the answering defendant based outside India later that month. 3) On September 26,1997 the answering defendant intimated to defendant No.14 made a formal offer to defendant No.14's on October 6,1997. The answering defendant received defendant No.14 acceptance of the offer on 6th October,1997. 4) The answering defendant states it had never been informed by defendant No.14 that he was in discussions with the plaintiffs. 39. It is mentioned in the written statements that the members of Kanpur sales team of the plaintiffs had approached the defendants for improving their service conditions and furthering their future prospects. 40. The defendants have denied that Mr. Bipaschit Bose was an employee of any of the defendant companies. It is mentioned that the plaintiffs are fully aware that Mr. Bose is a professional consultant who runs a placement agency and a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it clear to Coke that they did not intend to renew/continue their contract with Coke. Defendant No.8 has also denied that Mr. Steve Heath, Mr. Michel Beale, Mr. Prakash Wakankar, Ms. Harsimran Singh and Ms. Anjali Mahajeli camped in Hotel Golden Tulip at Kanpur before the imminent termination of the franchise agreement of GBC with Coke. It is denied that the presence of these persons was premeditated or had the object of carrying out an alleged corporate raid. 46. It is also denied that a high powered team was in Goa with the objective of inducing the employees to breach their employment contracts with GBC. It is also denied that Coke offered sales team inducement either in the form of higher remuneration or other benefits. It is also denied that there was any intention of causing loss, damage, injury and/or prejudice to GBC. 47. In the written statements it is mentioned that Coke has aggressive advertising and marketing programmes around the world, including India, which includes sponsorship of local and national music events, as well as sports events. It is stated that Coke works with several music companies such as HMV, Sony Music, Music Channels, etc and they have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and exclusive business information during the course of their employment. It is also mentioned that the plaintiffs genuinely and bonafidely apprehend that the defendants are in the process of causing further damage to their business. 52. Mr. P.Chidambaram, learned Senior Advocate, who appeared for the plaintiffs, placed reliance on the judgments of our Courts (Supreme Court as well as High Courts) as well as judgments of the English and American Courts to support his submissions. He submitted that there is no direct judgment of the Indian Court, on the questions of law which are involved in this case. According to him, the principles of law as laid down in English case Greig Vs. Insole (1978) 3 ALL E.R.449 are fully applicable to the facts of this case particularly regarding the principles of the tort of inducement of breach of contract. The relevant observations of the said case are reproduced as under:- At common law, it constitutes a tort for a third person deliberately to interfere in the execution of a valid contract which has been concluded between two or more other parties, if five conditions are fulfilled : First, there must be either (a) direct interference or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract, extending to cases where the defendant prevents or hinders performance (even though there is no breach) which is (ii) deliberate and (iii) direct. Such interference with business does not require proof that existing contracts have been breached; but the cause of action exists only when the defendant has brought about a damage. 57. Mr. Chidambaram also placed reliance on another celebrated case of Lumley Vs. Gye All. E.R. 1843. This case established for the first time that recovery can be had for inducing breach of any kind of contract and not merely contracts of employment. This tort has three forms (i) direct persuasion, (ii) direct disablement and (iii) indirect disablement. It was submitted that the present case is limited to the first form of the tort, i.e. tort of inducing breaches of contract through direct persuasion and accordingly, the plaintiffs' submissions are restricted to only this form of the tort. 58. Mr. Chidambaram also cited the case of D.C.Thomson Vs. Deakin Ors (1952) (2) All E.R. 361. In this case the Court observed that basic formulation of this tort can be stated as Any violation of legal rights, including rights under contract, committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement of service entered into with the plaintiff. 63. The Division Bench of the Madras High Court dismissed the appeal against the order of the learned Single Judge. The Special Leave Petition against the judgment of the Division Bench was dismissed by the Supreme Court. 64. Mr. Chidambaram also drawn my attention to the decision of the Bombay High Court in Ambience Space Sellers Ltd. Vs. Asia Industrial Technology Pvt. (NOM 2395/96 in Suit 3238/96 dated 17.12.96) wherein the learned Single Judge of the Bombay High Court held that the law of torts being a developing law, its frontiers are incapable of being strictly barricaded. The Supreme Court has held that the ambit of tortious law keeps on widening on the touchstone of fairness and practically of the situation. The learned Single Judge observed that It is to be seen that the procurement of a breach with knowledge of contract is now considered to be a wrongful act in itself. The Court found that it was a case of an actionable interference in its primary form. 65. The Division Bench of the Bombay High Court in appeal Approved the observation of the learned Single Judge. The special leave Petition filed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing unlawful. 72. This question was not answered in the case of Gujarat Bottling AIR1995SC2372 . The Court observed that we do not propose to go into the question whether reasonableness of restraint is outside the purview of Section 27 of the Contract Act and for the purpose of the present case we will proceed on the basis that an enquiry into reasonableness of the restrain is not envisaged by Section 27. The plaintiffs in order to justify the post employment restraints incorporated in the service and employment contracts placed reliance on Nordenfelt Vs. Maxim Nordenfelt (1891) All ER Rep. 1. The House of Lords held that restraints of trade are divisible into two distinct categories (a) partial restraint, and (b) general restraint. The reasonableness is a lest applicable to partial restraint and inapplicable to general restraint. The Court further held that the Restraint of trade and interference with individual liberty of action, may be justified by the special circumstances of a particular case. Restriction is reasonable_ that is, in reference to the interest of the parties concerned and reasonable in reference to the interest of the public, so framed and so guarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs. Skilton (1970) 1 All ER 1227. In the Fitch case, a solicitor's managing clerk was restrained for 25 years from being engaged or concerned in the business of any other solicitor within a radius of seven miles and in the case of Home Counties, the service agreement had a clause whereby the employee would not the enter into the service of any other person or firm carrying on dairy business during the period of employment and for a period of one year after the determination of his employment. This restraint was held valid as it applied only to the employer's trade as a dairyman and the employee's trade as a milk rounds man and would not prevent the employee from entering into the employment of someone other than a dairyman. According to the plaintiffs, the controversy involved in the present case is quite akin to the said English case. The principles decided therein are quite applicable to this case. It is submitted that the employees do not work for a rival soft drink company and that too only for a period of one year. The employees are, however, free to leave and work for other soft drink companies. 77. The plaintiffs placed reliance on the judgment of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that ordinarily the Court will not non suit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far reaching effects. It often affects the policy and finance of the company. Thus, unless the power to institute a suit is specifically conferred on a particular Director, he has no authority to institute a suit on behalf of the company and such power can only be conferred by the Board of Directors by passing a resolution in that regard and no such resolution has been produced in the instant case. 81. It was submitted by Mr. Dave that the plaintiffs have made general and grossly inadequate pleadings as to the damages suffered by them. No particulars of what damage has been caused to the plaintiffs, how has that come about and the quantum of damage has been shown. All that has been mentioned in the plaint is that the plaintiffs have suffered loss and damage and they are in the process of working out the same and for which they sought leave of the Court under Order 2, Rule 2 CPC to institute a separate action. It was submitted by Mr. Dave that the plaintiffs are unable to identify any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid judgments that the Court should refuse injunction, in cases where the plaintiffs are guilty of unconscionable behavior and do not approach the Court with clean hands. 87. Mr. Dave also submitted that the present suit as filed by the plaintiffs is not a Quia timet action. Quia timet is defined in Black's Law Dictionary as Because he fears or apprehends', in equity practice, the technical name of a bill filled by a party who seeks the aid of a court of equity, because he fears some future probable injury to his rights or interests, and relief granted must depend upon circumstances. 88. Mr. Dave submitted that in the present suit the entire cause of action as per the plaintiffs is actions, which have already taken place before filing of the suit and between December 31, 1996 to March 1998. Vague averments have been made in the various paragraphs of the plaint. para 50 of the plaint discloses the entire cause of action according to the plaintiffs themselves. It does not speak about any future apprehended loss and need to secure against the same. Since the plaintiffs have not pleaded particulars, there is an absence of specific and detailed averments as to lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about on the mind of person of one of the contracting parties. It was also submitted that the defendants have a better salary structure in general and no special offers have been made to the employees of Pepsi. 92. Mr. Dave submitted that the plaintiffs have not made out a case for grant of injunction. He submitted that the plaintiffs did not have the balance of convenience nor are the plaintiffs likely to suffer any irreparable injury. He placed reliance on the decision of the House of Lords in NWL Ltd. Vs. Woods 1979 3 All E.R. 614. Lord Diplock cautioned against granting of injunctions merely balancing convenience of parties at a stage when the evidence is incomplete. He also relied on Duport Steels Ltd. Vs. Sirs 1980) 1 All E.R. 529 wherein the House of Lords observed that unless that threat is imminent or there is serious danger to public safety or health, the court would not grant any interim injunction. 93. Principal submissions on behalf of defendant Nos. 1 to 8 were advanced by Mr. Iqbal M. Chagla, Senior Advocate. Mr. Chagla has also taken preliminary objections regarding the maintainability of the suit. He formulated the following points to demonstrate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s essential terms) between the plaintiff and its employees/third parties, the breach or interference with, which is alleged. (ii) There was in fact, a breach and not merely a lawful termination of such contract or that there was in fact, an actual interference with performance under the contract. (iii) Such breach or interference with performance was in duced by the defendants for the purpose and with the intention of injuring the plaintiffs. (iv) The inducement/interference was with the aforesaid intention /purpose and not justifiable being caused by any intention on the part of the defendant to further its own business interests by free competition. (v) Such breach or interference by the defendants resulted in special (actual) damage to the plaintiffs. (vi) If no breach was actually caused, there had been the use of unlawful means by the defendants to interfere with the performance of the contract. 97. Mr. Chagla also submitted that the plaintiffs have deliberately confused the concept of termination of contract (which is not actionable) with breach of contract. The employers should be free to terminate their contracts with their employers. He submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to him, it is not even alleged by the plaintiffs that there has been any interference with the performance of the contracts of the said senior employees, by the use of any unlawful means. 101. Mr. Chagla submitted that the affidavits filed by two of the plaintiffs' employees, namely, Mr.George Kavoor and Mr. Varun Berry are obviously self-serving and are made at the behest of the plaintiffs with whom the said two persons continue to be employment. The truth can be revealed only by questioning these two witnesses at the time of the trial. 102. Mr. Chagla submitted that Mr. Bipaschit Bose is not even an employee of the defendants. He is a professional and independent consultant who runs a placement agency. There was no mandate from the defendants to Mr. Bose in any form nor had he been requested to approach/target the plaintiffs' employees. 103. The allegations regarding 21st Century Media Private Limited (Sports Consultant) whose services were engaged by the defendants to break its contract with the plaintiffs by inducing Mr. Javagal Srinath, the Indian Cricketer into breaking his exclusive contract with the Sports Consultant, were denied as false by Mr. Chagl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exclusive contract that World Tel Inc had with him. When World Tel Complained, the plaintiffs alleged that Mr. Jayasuriya had repeatedly assured the plaintiffs that he was free to sign a contract with them and suggested the World Tel Inc to resolve the issue directly with him. 106. In reply to the allegation that the defendants in February 1998 sought to induce DNA Networks Private Limited-the Music Consultant of the plaintiffs, to break his contract with the plaintiffs. It has been submitted that admittedly there has been no breach of the contract between the plaintiffs and the Music Consultant and this complaint must fail at the threshold. 107. Mr. Chagla submitted that defendant No.13 had no knowledge of any contract between the plaintiffs and the Music Consultant. He stated that a meeting took place between defendant No.13 and the Music Consultant at Bangalore in November 1997 and not in February 1998 as alleged. 108. The allegation of the offer of retainership in exchange for the Music Consultant terminating its contract with the plaintiffs and working exclusively with the defendants is false and has been specifically denied. 109. Through the plaintiffs allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts associate companies. 113. Similarly, the plaintiffs have also not filed any affidavit either of Mr. Prashant Timblo or any other officer of GBC or its associate companies nor of any other individual actually connected with the matters in Goa. On the other hand, the defendants have filed the affidavits of defendant No.9 and Mr.Joel Peres and the written statements of defendant Nos.9 and 15 who were all concerned personally with these matters. 114. In reply to the allegations that the defendants 9,10,11 12 in conspiracy with defendant No.16 took away the entire sales team of the plaintiffs at Kanpur with a view to directly injure and damage the plaintiffs, Mr. Chagla submitted that only three employees of the plaintiffs joined employment with the defendants. None of these three employees breached their respective contracts of employment with the plaintiffs. The contracts of employment were terminable at will, upon giving three months notice, or salary in lieu thereof. It is also submitted that each of these three employees had to recover much larger amounts from the plaintiffs. 115. Mr. Chagla seriously disputed the facts and events of the Kanpur episode. He submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared obviously by the plaintiffs wherein only the address of defendant No.5. the date of the appointment letter, the designation and signature of the person concerned were filled in, by hand. The postal receipts in respect of the Registered A.D. postings by 4 of the aforesaid 5 individuals to whom letters of appointment had not been issued are all dated 12th February 1998 and consecutively numbered from No.3772 to 3779. It was submitted that Mr. Pandey retracted his resignation by his handwritten letter dated 16th February 1998 in which he referred to the physical intimidation and coercion on the part of the plaintiffs that had compelled him to address the letter of resignation to the defendants against his will. 118. Mr. Chagla submitted that in services there is either vertical or horizontal mobility. The employees change their jobs in search of better prospects either vertically or horizontally. Mr. Chagla also contended that the plaintiffs themselves have employed several persons previously employed by the defendants' bottlers. 119. Mr. Chagla further submitted that the intent of the defendants was to advance their own legitimate business interests by rapidly recruiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by law if there is not sufficient justification for the interference, an action lies at the suit of an employer against any person who knowingly and intentionally, and without justification, induces the employees to commit a breach of the contract of service and leave his employer before the time fixed for the lawful determination of his service. A person may be liable for procuring a breach of a contract not only where he directly persuades a party to the contract to break it, but also if he commits a wrongful act so as to prevent the party from performing the contract, or he persuades a third person to do an act in itself wrongful or not legitimate which renders performance of the contract impossible, but he is not liable if he persuades a third person to perform an act which in itself lawful even if the result is to induce a breach of contract by the party to it. If a person has acted individually, no action lies against him if no breach of the contract of serv ice is two or more persons join together in a combination of which the predominant purpose is to damage a third person and damage actually results, they may be liable to the third person for a tortious conspiracy, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the contract is terminated at will, the position is not different. In Triangle Film Corporation Vs. Artcraft Pictures Corporation (250 F 981 at 982) in which the Court observed as under:- Nobody has ever thought, so far as we can find, that in the absence of some monopolistic purpose every one has not the right to offer better terms to another's employees, so long as the latter is free to leave. The result of the contrary would be intolerable both to such employees as could use the employee more effectively and to such employees as might receive added pay. It would put an end to any kind of competition. 127. In the said judgment the Court observed that so far as we have found, it has never been thought actionable to take away another's employee, when the defendant wants to use him in his own business, however, much the plaintiff may suffer. 128. Mr. Chagla placed reliance on Dale Vs. Thompson (1997) 962 F. Supp. 181. In the said judgment it is mentioned that: Under an at will arrangement the prerequisite does not exist for the tort of interference with employment relationship. A third party who interferes with such a tenuous relationship is not liable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir terminable at will contracts and by locating these employees in their previously assigned territories. The Court observed as under: We conclude that the hiring and placing of the plaintiff's former employees by the defendant for the purpose of developing the territory assigned to him by a company competing with the plaintiff amounted to justifiable interference. In reaching this conclusion we recognised and apply the general principle that interference may be justified when the plaintiff and defendant are competitors. The Court also observed that: Competition is the life of trade. Every act done by a trader for the purpose of diverting trade from a rival and attracting it to himself, is an act intentionally done, and, insofar as it is successful to the injury to the rival in his business.......to hold such an act wrongful and illegal would be to stifle competition. Trade should be free and unrestricted and hence every trader is left to conduct his business in his own way and cannot be held accountable to a rival who suffers a loss or profits by anything he may do, so long as the methods he employs are not of a class of which fraud, misrepresentation, intimidati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. 405 of 1997. He submitted that this decision not only does not disturb the decision of Variava, J. but also recognises justification as a defense to this tort. 138. Mr. Chagla submitted that the plaintiffs have miserable failed to prove any conspiracy on the part of the plaintiffs to damage the defendants and he placed reliance on Mulcahy Vs. the Queen; 1868 LR (lll) 306. The relevant portion reads as under: A combination wilfully to do an act causing damage to a man in his trade or other interests is unlawful and if damage is caused, is actionable as a conspiracy. To this there is an exception where the Defendants' real and predominant purpose is to advance their own lawful interests in a matter in which they honestly believe that these interests would directly suffer if the action against the plaintiff was not taken. 139. The definition of 'Conspiracy' enunciated in Salmond's Law of Torts 15 Ed., has been accepted by the Hon'ble Supreme Court of India in Rohtas Industries Vs. Union of India; (1976)ILLJ274SC , the Court observed that, where there are mixed motives, liability will depend on ascertaining which is the predominant object or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use, restraining an employee from engaging or undertaking employment for 12 months after he has left the plaintiffs' service. It is well settled that such post termination restraint, under Indian Law, is in violation of Section 27 of the Contract Act. Such contracts are unenforceable, void and against the public policy. What is prohibited by law cannot be permitted by Court's injunction. (II) All crucial, vital and important averments of the plaint have been specifically denied in the written statements. The defendants on the basis of documentary evidence have tried to discredit the veracity and truthfulness of the plaintiffs averments. Some of the averments of the plaintiffs which have been specifically denied in the written statements are recapitulated as under:- (II) (a) Mr. Jitender Nayyar : In this case the plaintiffs have alleged that the defendants have induced him to break his contract with Pepsi. In the written statements, this averment is specifically denied and it is incorporated, that he left the plaintiffs' employment in December, 1995 and joined Ranbaxy laboratory where he worked from January, 1996 to December, 1996. It is only after working for one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and none of these three employees breached their respective contracts of employment with the plain tiffs. The contracts of employment were terminable upon three months notice or salary in lieu thereof. 147. These instances can be multiplied. In view of the categorical denial in the written statements, at this stage, it is difficult for the court to ascertain the veracity and truthfulness of the averments and allegations mentioned in the plaint. This can only be ascertained after the parties have been given an opportunity of adducing their evidence and opportunity to cross-examine the witnesses. 148. I do not deem it appropriate to give my findings on the aforesaid averments and submissions. Any expression of definite opinion at this stage may eventually prejudice the trial of this suit. 149. However, I deem it appropriate to observe that equitable relief of injunction can only be granted if the plaintiffs have approached the Court by disclosing the whole truth and have inspired implicit trust and confidence of the Court by demonstrating their conduct. 150. The plaintiffs are not entitled for injunction for the following reasons also : (a) The injunction, as prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elves have engaged a large number of employees who were working in other multi national or business organisations. They were appointed because they had work experience with other organisations. The same plaintiffs are not justified in seeking an injunction so that their employees may not join the defendants. All that is to be seen is whether the defendants had adopted unfair means in advancing their business interests or not. (m) In a free market economy, everyone concerned, must learn that the only way to retain their employees is to provide them attractive salaries and better service conditions. The employees cannot be retained in the employment perpetually or by a Court injunction. (n) Free, fair and uninterrupted competition is the life of the trade and business. This freedom in free market economy has to be zealously protected in the larger interest of free trade and business. No injunction cane be granted which is likely to restrict or curtail this freedom. (o) It is difficult to hold at this stage that the predominant object and paramount consideration behind the actions of the defendants was designed to injure the plaintiffs. (p) At this stage, it is also diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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