Participation Code: PC278R

MNLU NAGPUR INTRA – MOOT COURT COMPETITION, 2024

~MEMORANDUM ON BEHALF OF THE RESPONDENTS~

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

CIVIL MISC. APPEAL No. 1234 of 2024

In the matter of

MR. RAKESH MISHRA

(Petitioner)

V.

ELECTROTECH LIMITED

(Respondent)

-APPEAL UNDER ORDER 43 RULE 1(r) R/W SECTION 104 OF THE CODE OF CIVIL PROCEDURE,
1908

Upon Submission to the Hon’ble Justices of the High Court of Bombay

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -TABLE OF CONTENTS-

LIST OF ABBREVIATIONS………………………………………………………………..3
INDEX OF AUTHORITIES………………………………………………………………4-8
STATEMENT OF JURISDICTION………………………………………………………..9
STATEMENT OF FACTS……………………………………………….……………….. 10
ISSUES RAISED……………………………………………………………..……………. 11
SUMMARY OF ARGUMENTS…………………………………………………..……….12
ARGUMENTS ADVANCED………………………………………………………………13
WHETHER THE HIGH COURT CAN ENTERTAIN THE CHALLENGE TO THE
PRESENT ORDER GRANTING AD-INTERIM INJUNCTION?...................................13

[A] SCOPE OF INTEREFERENCE IS NARROW…………………………..….14

WHETHER THE DISTRICT JUDGE CORRECTLY GRANTED THE ORDER OF

AD-INTERIM INJUNCTION IN FAVOUR OF RESPONDENT?..................................16

[A] THE PLAINTFF HAS ESTABLISHED A PRIMA FACIE CASE…….….... 17

[B] BALANCE OF CONVENIENC IS IN FAVOUR OF THE PLAINTIFF…...17
[C] PLAINTIFF WILL SUFFER IRREPARABLE INJURY……….…………...18
[D] LEARNED DISTRICT COURT HAS CORRECTLY GRANTED THE
ORDER OF AD INTERIM INJUNCTION……..……….………………………...18

PRAYER………………………………………………...…………………………………..22

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -LIST OF ABBREVIATIONS-

ABBREVIATION CORRESPONDING EXPANSION

& And
¶ Paragraph
AIR All India Reporter
Anr. Another
Art. Article
C.P.C The Code of Civil Procedure, 1908
ILR The Indian Law Reports
r/w Read With
SC Supreme Court
SCC Supreme Court Cases Online
SEC. Section
u/s Under Section
v. Versus

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -INDEX OF AUTHORITIES-

STATUTES

[Link]. NAME PARA. NO.

1. THE CODE OF CIVIL PROCEDURE, 1908 1, 4

2. THE INDIAN CONTRACT ACT, 1872 33, 37

3. BOMBAY CITY CIVIL COURTS ACT, 1948 3

CASE LAWS

[Link]. NAME PARA. NO.

Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410
1. 5, 24

Amber Size & Chemical Co v. Menzel [1913] 2 Ch 239

2. 39

Anand Prasad Agarwalla v. Tarkeshwar Prasad, (2001) 5 SCC 568

3. 27

Anindya Mukherjee v. Clean Coats Pvt. Ltd, 2010 SCC OnLine Bom 1681
4. 34

Ashok Kumar Aseri v. University of Jodhpur AIR 1995 Raj 33

5. 3

Assistant Collector of Cerntral Excise, Chandan Nagar, West Bengal v. Dunlop

6. 25
India Ltd. and Others, AIR 1985 SC 330
Babu Ram Dharam Prakash v. Izuk Chemical Works, 2008 SCC OnLine Del
7. 10
1734
Bharat Infracement (Ltd.) v. Ultratech Cement (Ltd.), (2022) 1 HCC (Bom) 18
8. 7

Bombay Dyeing and Manufacturing Co. Ltd. v. Mehar Karan Singh, 2010(7)
9. 33
Mh.L.J. 48

10. Bruce v. Silva Raj, 1987 Supp SCC 161 12

11. Burn and Co. v. McDonald, ILR 36 Cal 354 31

12. Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., reported in (1999) 7 12
SCC 11

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
13. Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719 22

14. Davendra Nath v. Prem Nath Motors Ltd., 1998 SCC OnLine Del 615 12

15. Decro- wall international SA v. Practitioners in Mktg Ltd., [1971] 2 All ER 216 31
at 223

16. Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 18
SCC 622, para 38.

17. Eastham v. Newcastle United Football Club Ltd., [1964] Ch 535 29

18. Esha Ekta Appartments CHS Ltd. v. Municipal Corporation of Mumbai, (2012)4 12
SCC 689.

19. Faccenda Chicken Ltd v. Fowler, [1986] 1 All ER 617 33

20. Firm Ishardass devi chand v. RB Prakash Chand AIR 1969 SC 938 7

21. Fitch v Dewes, 1921 All ER Rep 13 39

FL Smidth Pvt. Ltd. v. Secan Invescast (India) Pvt. Ltd, 2013 SCC OnLine Mad
22. 37
389

23. Forster Sons Ltd v. Suggett (1918) 35 TLR 87. 39

24. Future Corporate Resources (P) Ltd. v. Edelweiss Special Opportunities Fund, 13
2022 SCC OnLine Bom 3644.

25. Gadadhar Mishra v. Biraja Devi, AIR 1999 Ori 226 21

26. Geetanjali Nursing Home (P) Ltd v. Dileep Makhija AIR 2004 Del 53. 24

27. Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545 15

28. Herbert Morria Ltd. v. Saxelby [1916] 1 AC 688 at 710 36

29. Hill v. CA Parson and Co. Ltd., [1971] 3 All ER 1345 at 1353-54 applied. 31

30. Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan, (2002) 5 SCC 760 5

31. Hi-Tech Systems & Services Ltd v. Suprabhat Ray & Ors., 2015 SCC OnLine 40
Cal 1192

32. Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt Ltd AIR 2004 AP 4
310; Patel Jasmat, Sun Pharmaceutical Industries v. Ciba Geigy Ltd., 1992 (2)
GLR 1049

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
33. Jai Kishan v. Britonatics (1987) Supp SCC 72 17

34. K. Ravi Prasad Reddy v. G. Giridhar, 2022 SCC OnLine AP 135 26

35. Kapil Sharma & Ors v. Piyush Sharma” 2021 SCC OnLine Del 1963 12

36. Lalithakshi Annadanagouda v. Sadashivappa Basappa Patil And Anr. AIR 1984 9
kant 74

37. Madhavan Pillai v.. Inez Rosario, AIR 1971 Ker. 27 17

38. Manjunath Anandappa Urf. Shivappa v. Tammanasa & Ors (2003) 10 SCC 390 12

39. Manrakhan Yadav and another v. Kanhai and Others, Misc. appeal no. 12 of 26
2011

40. Martin Burn Ltd. v. [Link], AIR 1958 SC 79 25

41. Mohd Mehtab Khan & Ors v. Khushnuma Ibrahim Khan & Ors (2013) 9 SCC 12
221
Mohd. Aslam Shawl v. Gulam Homd Shangru 1988 (2) CCC 1135
42. 12

43. Monsanto Technology Llc Thru The v. Nuziveedu Seeds Ltd. Thru The Director 13
(2019) 3 SCC 381.

44. N.V. Chowdary v. Hindustan Steel Works Construction Ltd., AIR 1984 A.P. 110 18

45. Nawab Mir Barkat Ali Khan v. Nawab Zulfekhar Jah Bahdur, AIR 1975 AP 187 18

46. Niranjan Shankar Golikari v. Century Spg. and Mfg. Co. Ltd., 1967 SCC OnLine 30
SC 72

47. N.R. Dongre v. Whirlpool Corpn., (1996) 5 SCC 714 12

48. P Govindaswamy v. S Narayanan (1987) Supp SCC 58 3

49. Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 10
726

50. Rogers v. Rajendro Dutt (1860) 13 Moo PC 209 69

51. S.R.K. Murthy v. Narayana Das, AIR 1982 AP 384 18

52. Sangaji v. Gujarat Electricity Board, 1982 (2) GLR 104; 4

53. Sanjay Tandon v. Sarabjit Singh AIR 1997 Del 380. 19

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
54. Shadi v. Anup Singh ILR 112 All 436 12

55. Shiv Kumar Chadha Etc. Etc v. Municipal Corporation Of Delhi And Ors (1993) 26
3 SCC 161

56. Shiv Shankar Goyal v. Municipal Council, Ajmer AIR 1997 Raj 176 19

57. Shyam Sel & Power Limited & Anr v. Shyam Steel Industries Limited” 2023 (1) 12
SCC 634

58. Sitaram v. Banwari Lal AIR 1972 Cal 105 18

59. Skyline Education Institute (Pvt) Ltd v. [Link] & Anr (2010) 2 SCC 142 16

60. SM Dyechem Ltd. v. Cadbury India Ltd., (2000) 5 SCC 573 27

61. Star India Pvt Ltd v. Laxmiraj Seetharaman Nayak, 2003 (3) BomCR 563 33

62. Sukhdeo Shankar Pawar v. Nashik Municipal Corporation, 2015 SCC OnLine 12
Bom 5344
Sunilchand C. Mazumdar v. Aryodaya Spg. and Wvg. Mills Co. Ltd., 1962 SCC
63. 30
OnLine Guj 3.

64. Swaroop Kunvarba Balvantihn Udavat v. Pratapsinh Nathusinh Jadeja, 2001 (3) 12
CCC 499 (Guj),

65. Terrapin Ltd v. Builders’ Supply Co (Hayes) Ltd (1967) R.P.C 375 41

66. Thomas Marshall (exports) ltd v. Guinle, 1978 3 All ER 193 at 202 seq 31

67. Union of India v. Amrik Singh, AIR 1963 Punj. 104 27

68. Urmi Juvekar Chiang v. Global Broadcast News Ltd. 2007 (109) Bom LR 981 41

69. V. Sivaram v. Foseco India Limited, Pune, 2005 SCC OnLine Kar 595 32

70. Vijaya Minerals Ltd v. Bikash Chandra Deb AIR 1996 Cal 67, 2

71. Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727 8, 11

72. Yenamandala Venkatarayudu vs. Vegi Ananthalaxmi 1975 (2) An. WR 476 at 7
478

73. Zee Telefilms Ltd. v. Sundial Communication Pvt. Ltd., 2003 (5) Bom. C.R. 41
(O.S.) 404

74. Zenit Mataplast Pvt. Ltd. v. State of Maharashtra, (2009) 10 SCC 388 27

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 BOOKS, ARTICLES AND PUBLICATIONS

[Link]. NAME PARA. NO.

Bhardwaj, S. and Sibasish, S., 2014. Treatment of a Non-Compete Clause in

1. 31
M&A: Finally Clarifying the Indian Position?. NUJS L. Rev., 7, p.263.
Harish Nambiar, Non-Compete Provisions under the Indian Contract Act and
2. 33
Its Applicability: An Analysis, 14 INT’l. IN-HOUSE COUNSEL J. 1 (2021).

Pullock & Mulla, The Indian Contract Act, 1872 Pg. 620-660, (14th Ed. Lexis
3. 37
Nexis 2013)
Sir Dinshaw Fardunji Mulla, The Code of Civil Procedure Pg.1890-1895, (Lexis
4. 2
Nexis 2018)
S.C. Mitra, Law of Contracts Pg. 304-313, (3rd Ed. Orient Publishing Company
5. 39
2015)
Sharma, S., Wielding The Blue Pencil: A Panacea Or Bane For The Non-
6. 34
Compete Covenants.
Zariwala, M. F., & D’Monte, W. (2022). Scope of Non-Compete Clauses in
7. 34
M&A Transactions. Jus Corpus LJ, 3, 147.

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -STATEMENT OF JURISDICTION-

THE COUNSEL FOR THE RESPONDENTS, HEREBY SUBMITS TO THIS HON’BLE

COURT’S JURISDICTION UNDER ORDER 43 RULE 1(r) READ WITH SECTION 104 OF
THE CODE OF CIVIL PROCEDURE, 1908.

THE PARTIES SHALL ACCEPT JUDGMENT OF THE COURT AS FINAL AND BINDING
FOR THEM AND SHALL EXECUTE IT IN ITS ENTIRETY AND IN GOOD FAITH.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS.

IT IS HUMBLY SUBMITTED BEFORE THIS HON’BLE COURT TO CONSIDER THE

ISSUES MENTIONED BELOW AS AROUSED FROM THE INTERIM ORDER PASSED
BY THE COURT OF THE DISTRICT JUDGE IN CYBERPUR, KULRASHTRA.

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -STATEMENT OF FACTS-

(i) Respondent, a prominent IT company based in Cyberpur, Kulrashtra, is the second

largest IT Company, providing extensive IT services and consulting. To address the
high attrition rate affecting the industry, Respondent company introduced a non-
compete clause in employment contracts starting from 2022 which was signed and
agreed by the petitioner. The non-competition clause is annexed herewith and marked
as ANNEXURE-1. This clause aims to mitigate the loss of critical knowledge and
protect proprietary innovations by restricting employees from joining competitors or
engaging in similar business activities for one year after leaving the company.
(ii) Mr. Rakesh Mishra, who graduated from the National Institute of Technology in 2022,
joined Respondent company as a junior engineer on May 2, 2022. He signed an
employment contract in which the non-compete clause was included. During his tenure,
Petitioner worked on developing proprietary software for Artificial Intelligence
chatbots tailored for citizens of Indistan. On April 22, 2024, Petitioner resigned from
his position, and upon completion of the deboarding formalities, he was reminded of
his contractual obligations under the non-compete clause by the Respondent company.
(iii) On May 22, 2024, Petitioner updated his LinkedIn profile to announce his new role as
a senior engineer at Information Technology Consultancy Services, a competitor of
Respondent company. In response, Respondent filed a civil suit seeking 10 crore
damages and an injunction at District Court, Kulrashtra as per Section 3 of Bombay
City Civil Courts Act, 1948 to prevent Petitioner from joining his new employer. The
company argued that Petitioner’s new role would breach the non-compete clause and
potentially compromise proprietary data, impacting its competitive advantage.
(iv) The Learned District Judge of Cyberpur, Kulrashtra, granted an ad-interim injunction
restraining Petitioner from joining Information Technology Consultancy Services,
pending the resolution of the suit. Petitioner contested this order, arguing that the non-
compete clause was illegal and unenforceable. The dispute was subsequently brought
before the Hon’ble High Court of Kulrashtra in appeal for further adjudication.
(v) In the context of this case, the non-compete clause in question is designed to safeguard
Respondent company’s proprietary information and mitigate the adverse effects of high
employee turnover. The clause is specific in its scope and duration, aiming to prevent
Petitioner from leveraging sensitive knowledge gained during his employment to the
detriment of his former employer.

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -ISSUES RAISED-

~I~

WHETHER THE HIGH COURT CAN ENTERTAIN THE CHALLENGE TO THE

PRESENT ORDER GRANTING AD-INTERIM INJUNCTION?

~ II ~

WHETHER THE DISTRICT JUDGE CORRECTLY GRANTED THE ORDER OF AD-

INTERIM INJUNCTION IN FAVOUR OF RESPONDENT?

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -SUMMARY OF ARGUMENTS-

I) WHETHER THE HIGH COURT CAN ENTERTAIN THE CHALLENGE TO

THE PRESENT ORDER GRANTING AD-INTERIM INJUNCTION?

The respondent respectfully submits that the appeal under Order 43 Rule 1(r) C.P.C. read with
Section 104 of the Code of Civil Procedure, 1908, challenging the ad-interim injunction granted
by the Learned District Court, is devoid of merit and should be dismissed. The interim
injunction was issued to safeguard the respondent company’s proprietary interests and does not
reflect a final adjudication on the merits of the case. The District Court’s decision to grant the
ad-interim injunction was made based on established legal principles and a judicious
assessment of the evidence, adhering to the standards set forth by the precedents. As the order
was neither arbitrary nor capricious, the appellate court should refrain from substituting its
discretion for that of the lower court. Furthermore, the petitioner’s conduct, including his
potential violation of the non-compete clause, creates the necessity of maintaining the
injunction to protect the respondent company’s business interests. Consequently, it is prayed
that the appeal should be dismissed, as it does not meet the rigorous criteria required for
appellate intervention in discretionary orders.

II) WHETHER THE DISTRICT JUDGE CORRECTLY GRANTED THE ORDER

OF AD-INTERIM INJUNCTION IN FAVOUR OF RESPONDENT?

The respondent respectfully submits that the ad-interim injunction granted is fully justified
under established legal principles. The three-fold test for interim relief—prima facie case,
balance of convenience, and irreparable harm—has been met with precision. Respondent has
demonstrated a prima facie case by establishing that Mr. Rakesh Mishra’s access to sensitive
proprietary information necessitates enforcement of the non-compete clause to protect its
business interests. The balance of convenience favors Respondent, as the risk of harm from
Petitioner’s potential disclosure of trade secrets outweighs any inconvenience to him. The
respondent has also shown that Respondent would suffer irreparable harm if the injunction
were not maintained, given the nature of the confidential information involved. Furthermore,
the injunction enforces a reasonable non-compete clause, aligning with public interest in
safeguarding trade secrets and ensuring fair competition. Thus, it is prayed that the ad-interim
injunction should be upheld, as it is both legally sound and essential for protecting Respondent
company’s legitimate interests.

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~MEMORANDUM ON BEHALF OF RESPONDENTS~
 -ARGUMENTS ADVANCED-

-ISSUE I-
WHETHER THE HIGH COURT CAN ENTERTAIN THE CHALLENGE TO THE
PRESENT ORDER GRANTING AD-INTERIM INJUNCTION?
May It Please Your Honors,

for, the above-named Respondent Most Respectfully Showeth,

1. THAT the present appeal has been filed under Order 43 Rule 1(r) r/w Section 104
C.P.C. challenging the impugned order of granting ad-interim injunction in favor of
the respondent (original plaintiff) restraining the petitioner from Joining Information
Technology Consultancy Services.
2. THAT the learned district court has granted an ad-interim injunction, following the
principles of law regulating the grant or refusal of interlocutory injunctions. In the case
of Vijaya Minerals Ltd1, it was held that where the contract contains a negative
covenant, the same can be enforced by injunction.2
3. THAT the ad interim injunction was issued to secure the plaintiff’s interest, and it is
not a ruling on the merits of the case.3 In interlocutory proceedings, the court can
express only its tentative view4 which does not cause any prejudice to the concerned
party.5
4. THAT in the present matter, an appeal against an ad interim injunction is technically
maintainable under Order 43 Rule 1(r), C.P.C., but as held by the Andhra Pradesh High
Court6, the present appeal should be dismissed as it does not meet the criteria for
extraordinary circumstances needed to bypass the standard procedure under Order 39
Rule 4, C.P.C. Petitioner’s failure to follow the proper legal remedy in the original
proceedings and the lack of substantial justification for this procedural deviation
suggest that the appeal is without merit and premature.

1
Vijaya Minerals Ltd v. Bikash Chandra Deb AIR 1996 Cal 67,
2
Sir Dinshaw Fardunji Mulla, The Code of Civil Procedure 1890-1895, (Lexis Nexis 2018)
3
Ashok Kumar Aseri v. University of Jodhpur AIR 1995 Raj 33
4
P Govindaswamy v. S Narayanan (1987) Supp SCC 58
5
Jai Kishan v. Britonatics (1987) Supp SCC 72
6
Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt Ltd AIR 2004 AP 310; Patel Jasmat, Sun
Pharmaceutical Industries v. Ciba Geigy Ltd., 1992 (2) GLR 1049 Sangaji v. Gujarat Electricity Board, 1982 (2)
GLR 104;

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 5. THAT the Apex Court in Hindustan Petroleum Corpn. Ltd7, reiterated that it is
elementary that the grant of an interlocutory injunction during the pendency of the
legal proceeding is a matter requiring the exercise of discretion of the court.8
6. THAT the appellate court against the judgment of granting or refusing to grant
injunction can interfere when the order passed is arbitrary or is passed by not taking
into account the relevant considerations9, which is not applicable in the present case as
the order of ad interim injunction was granted following the principles of law.

[A] SCOPE OF INTEREFERENCE IS NARROW

7. THAT it is a well-settled principle of law that while exercising appellate jurisdiction,

the scope of interference with the discretionary order of subordinate court is very
narrow. If it appears to the appellate court that in exercising its discretion the trial court
has acted unreasonably or capriciously or has ignored relevant facts, then it would
certainly be often to the appellate court to interfere with the exercise of discretion.10
Where the trial court had not exercised its discretion capriciously or arbitrarily, no case
for interference would be made out.11
8. THAT the lower court granted an ad-interim injunction in favour of the respondent
company after a thorough examination of the facts and legal principles. In this regard,
the Hon’ble Supreme Court in the case of Wander Ltd.12 held in para 14 that “the
appeals before the Division Bench were against the exercise of discretion by the Single
Judge. In such appeals, the appellate court will not interfere with the exercise of
discretion of the court of first instance and substitute its own discretion except where
the discretion has been shown to have been exercised arbitrarily, or capriciously or
perversely or where the court had ignored the settled principles of law regulating grant
or refusal of interlocutory injunctions.”
9. THAT the District Court, in the present case, applied the settled principles of law and
did not act arbitrarily or capriciously. The Appellate Court, therefore cannot substitute
its own discretion in place of the well-reasoned discretion exercised by the subordinate
court as has been held in Lalithakshi Annadanagouda13.

7
Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan, (2002) 5 SCC 760
8
Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410
9
AIR 1989 ALL 125 (DB)
10
Bharat Infracement (Ltd.) v. Ultratech Cement (Ltd.), (2022) 1 HCC (Bom) 18
11
Firm Ishardass devi chand v. RB Prakash Chand AIR 1969 SC 938
12
Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727
13
Lalithakshi Annadanagouda v. Sadashivappa Basappa Patil And Anr. AIR 1984 kant 74

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 10. THAT in the case of Babu Ram Dharam Prakash14, the Apex Court referred to the
judgment in Ramdev Food Product Case15 and emphasized on the principles to be
followed by the Appellate Court while considering the injunction order passed by
Court in the first instance. It stated, the grant of an interlocutory injunction is in
exercise of discretionary power and hence, the appellate courts will usually not
interfere with it.
11. THAT in Skyline Education Institute16, referred to the judgments in Wander Ltd, NR
Dongre v. Whirlpool Corporation17 held that The court of first instance has the
discretion to grant or refuse temporary injunction relief, based on objective
consideration and cogent reasons. The appellate court cannot interfere, as they can
form different opinions on prima facie case, balance of convenience, irreparable injury,
and equity.
12. THAT in the Silva Raj case18, it was held that the appellate court would be slow to
interfere with discretionary power of the trial court. This principle directly applies to
the current case where the District Judge of Cyberpur, Kulrashtra, exercised discretion
to grant an ad-interim injunction based on objective considerations and supported by
cogent reasons. Reliance is placed on “Shyam Sel19 and Kapil Sharma20, Swaroop
Kunvarba Balvantihn Udavat21, Manjunath Anadappa22, Mohd. Mehtab Khan23,
Shadi24, Mohd. Aslam Shawl25, Esha Ekta Appartments26, Davendra Nath27, Colgate
Palmolive28, Sukhdeo Shankar Pawar29
13. THAT in Monsanto Technology LLC30, it was held that the appellate court must not
‘usurp the jurisdiction of the Single Judge’. In the case of Bharat Infracement31, the
appellate court generally avoids interfering with ad interim orders unless they are

14
Babu Ram Dharam Prakash v. Izuk Chemical Works, 2008 SCC OnLine Del 1734
15
Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726
16
Skyline Education Institute (Pvt) Ltd v. [Link] & Anr (2010) 2 SCC 142
17
N.R. Dongre v. Whirlpool Corpn., (1996) 5 SCC 714
18
Bruce v. Silva Raj, 1987 Supp SCC 161
19
Shyam Sel & Power Limited & Anr v. Shyam Steel Industries Limited” 2023 (1) SCC 634
20
Kapil Sharma & Ors v. Piyush Sharma” 2021 SCC OnLine Del 1963
21
Swaroop Kunvarba Balvantihn Udavat v. Pratapsinh Nathusinh Jadeja, 2001 (3) CCC 499 (Guj),
22
Manjunath Anandappa Urf. Shivappa ... v. Tammanasa & Ors (2003) 10 SCC 390
23
Mohd Mehtab Khan & Ors v. Khushnuma Ibrahim Khan & Ors (2013) 9 SCC 221
24
Shadi v. Anup Singh ILR 112 All 436
25
Mohd. Aslam Shawl v.. Gulam Homd Shangru 1988 (2) CCC 1135
26
Esha Ekta Appartments CHS Ltd. v. Municipal Corporation of Mumbai, (2012)4 SCC 689.
27
Davendra Nath v. Prem Nath Motors Ltd., 1998 SCC OnLine Del 615
28
Colgate Palmolive (India) Ltd. v.. Hindustan Lever Ltd., reported in (1999) 7 SCC 1 28
29
Sukhdeo Shankar Pawar v. Nashik Municipal Corporation, 2015 SCC OnLine Bom 5344
30
Monsanto Technology Llc Thru The v. Nuziveedu Seeds Ltd. Thru The Director (2019) 3 SCC 381.
31
Bharat Infracement (Ltd.) v. Ultratech Cement (Ltd.), (2022) 1 HCC (Bom) 18

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 arbitrary, perverse, capricious, contrary to law, or unreasonable, adhering to long-
standing principles established 32 years ago.32
14. THAT once that discretion was exercised at the ad-interim stage by the learned single
Judge, in appeal, the burden on petitioner is much heavier following the Wander v.
Antox33 principle. The appellant must prove that the ad interim injunction order is
invalid, demonstrating that the relief sought is the only possible view and that the order
is not plausible, and therefore the learned single Judge fell into error.
15. THAT the court’s jurisdiction to interfere with an interlocutory or temporary injunction
is equitable, and it may refuse to intervene unless the party’s conduct is free from
blame.34 The petitioner’s conduct, including violating the non-compete clause by
joining a competing company, warrants an injunction to protect the Respondent’s
proprietary data and interests.
16. THAT no irreparable harm would be caused to the appellants if the present appeal is
dismissed, as the restriction imposed is not absolute in nature. Consequently, the
present appeal against the discretionary order of ad-interim injunction is liable to be
dismissed, as the order was appropriately granted based on a well-founded assessment
of the legal principles and the plaintiff is sanguine about the success of this suit in his
favor.

-ISSUE 2-
WHETHER THE DISTRICT JUDGE CORRECTLY GRANTED THE ORDER OF
AD-INTERIM INJUNCTION IN FAVOUR OF RESPONDENT?
17. THAT in the interlocutory proceedings, the court can express only its tentative view35
which does not cause any prejudice to the concerned party.36 An interim order for the
plaintiff is merely for securing their interest and is not a decision on the merits or a
court’s opinion on the matter.37
18. THAT in issuing a temporary injunction, the three fold tests to be applied are: (1)
Whether the plaintiff has a prima facie case; (2) Whether the balance of convenience
is in favour of the plaintiff ; and (3) Whether the plaintiff would suffer an irreparable

32
Future Corporate Resources (P) Ltd. v. Edelweiss Special Opportunities Fund, 2022 SCC OnLine Bom 3644.
33
Supra Note 11
34
Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545
35
P Govindswamy v. S Narayanan (1987) Supp SCC 58
36
Jai Kishan v. Britonatics (1987) Supp SCC 72
37
Ashok Kumar Aseri v. University of Jodhpur AIR 1995 Raj 33

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 injury if his prayer for temporary injunction is disallowed.38 However, this three-fold
test must not be applied mechanically.39
[A] THE PLAINTFF HAS ESTABLISHED A PRIMA FACIE CASE
19. THAT every piece of evidence produced by either party has to be taken into
consideration in deciding the existence of a prima facie case.40
20. THAT respondent has established a prima facie case for enforcing the non-compete
clause against the petitioner. As a junior engineer working on proprietary AI chatbot
software, petitioner had access to sensitive information crucial to Respondent
company’s competitive edge.
21. THAT in the case of Gadadhar Mishra41, the court ruled that a prima facie case should
be established without proving the case to be hilt, and if a fair question is raised, it
should be accepted. Thus, the evidence and circumstances presented clearly
demonstrate that a prima facie case exists, warranting the enforcement of the non-
compete clause.
[B] BALANCE OF CONVENIENCE IS IN FAVOUR OF THE PLAINTIFF
22. THAT the inconvenience of the applicant if temporary injunction is refused will be
balanced and compared with that of the other party, if it is granted.42
23. THAT the balance of convenience strongly favors the original plaintiff. It is to be noted
that the Respondent’s company has been grappling with a high attrition rate. Petitioner
involved in AI chatbot software development, could harm Respondent company’s
proprietary information and business interests if allowed to join competitor
Information Technology Consultancy Services.
24. THAT the non-compete clause in Section 2.1(a) restricts of the agreement, Mr. Rakesh
Mishra from joining businesses that directly compete with Respondent company,
without broadly limiting his employment options. The injunction safeguards the
respondent company’s business interests and intellectual property, enabling the
petitioner to pursue non-competing career opportunities, balancing public interest in

38
Sitaram v. Banwari Lal AIR 1972 Cal 105, Nawab Mir Barkat Ali Khan v.. Nawab Zulfekhar Jah Bahdur, AIR
1975 AP 187; S.R.K. Murthy v.. Narayana Das, AIR 1982 AP 384
39
Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, para 38.
40
Shiv Shankar Goyal v. Municipal Council, Ajmer AIR 1997 Raj 176; Sanjay Tandon v. Sarabjit Singh AIR
1997 Del 380.
41
Gadadhar Mishra v. Biraja Devi, AIR 1999 Ori 226
42
Dalpat Kumar V. Prahalad Singh,1992 (1) SCC 719.

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 intellectual property with fair business practices, thus favouring the injunction.43
Reliance may be place on Geetanjali Nursing44.
[C] PLAINTIFF WILL SUFFER IRREPARABLE INJURY
25. THAT the original plaintiff has argued that being a second largest IT Company in
Indistan45, if the ad-interim injunction is not upheld, it would cause irreparable harm
to the party seeking the injunction.46 Petitioner’s involvement in AI chatbot
development puts respondent company’s proprietary data and competitive edge at risk,
potentially leading to software compromise or misuse in IT sector. The Respondent
company’s competitive position and market share could suffer irreparable harm due to
the loss of proprietary technology and business secrets due to potential misuse.
26. THAT the order of ad-interim injunction was granted after satisfying the three-fold
test47, as Respondent faces potential loss of critical proprietary data, lacks an adequate
legal remedy for such harm, and the balance of convenience supports the injunction to
protect its business interests. Reliance is placed on K. Ravi Prasad Reddy48, Shiv
Kumar Chadha49, Manrakhan Yadav.50
[D] DISTRICT COURT HAS CORRECTLY GRANTED THE ORDER OF AD
INTERIM INJUNCTION
27. THAT when considering an application for interim relief, a court of first instance is
not expected to conduct mini-trial. It is the prima facie case that is to be assessed.51
Thus, the order of ad interim injunction was rightly granted after establishing a prima
facie case. The Courts generally issue injunctions where the right sought to be
protected is clear and not where it is doubtful.52
28. THAT the facts of the present case clearly establish that petitioner, after joining
Respondent company as a Junior Engineer on May 2, 2022, and resigning on April 22,
2024, subsequently joined Information Technology Consultancy Services as a Senior

43
Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410
44
Geetanjali Nursing Home (P) Ltd v. Dileep Makhija AIR 2004 Del 53.
45
¶3, Moot Problem, MNLU Nagpur Intra Moot Court Competition, 2024.
46
Assistant Collector of Cerntral Excise, Chandan Nagar, West Bengal v.. Dunlop India Ltd. and Others, AIR
1985 SC 330; Martin Burn Ltd. v.. [Link], AIR 1958 SC 79
47
Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719
48
K. Ravi Prasad Reddy v. G. Giridhar, 2022 SCC OnLine AP 135
49
Shiv Kumar Chadha Etc. Etc v. Municipal Corporation Of Delhi And Ors (1993) 3 SCC 161
50
Manrakhan Yadav and another V. Kanhai and Others, Misc. appeal no. 12 of 2011
51
SM Dyechem Ltd. v. Cadbury India Ltd., (2000) 5 SCC 573; Anand Prasad Agarwalla v. Tarkeshwar Prasad,
(2001) 5 SCC 568; Zenit Mataplast Pvt. Ltd. v. State of Maharashtra, (2009) 10 SCC 388
52
Union of India v.. Amrik Singh, AIR 1963 Punj. 104

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 Engineer on May 22, 2024. This sequence of events indicates that Petitioner’s move to
the new company was motivated by a better financial offer.
29. THAT respondent is justified in apprehending that Petitioner may disclose proprietary
knowledge and trade secrets upon joining a competitor, given his specialized training
and access to confidential information. An employer has an interest in preserving the
trade secrets and business connections.53
30. THAT in Niranjan Shankar Golikari54, the court ruled that if an employer is justified
in allowing an employee to disclose their business knowledge and secrets to a
competitor after receiving special training, an injunction to enforce a negative contract
can be issued to protect the employer’s interest. The situation is closely analogous to
the case of Sunilchand C. Mazumdar case,55 where an injunction was granted to
prevent the breach of the negative covenant.
31. THAT the petitioner entered into an employment contract with the respondent
voluntarily, without any notice, resulting in a unilateral repudiation of the contract.
However, this does not relieve the petitioner of its contractual obligations. In a case, a
negative covenant of non-disclosure of trade secrets for 5 years after contract of service
was held to be binding.56 An employee’s unilateral repudiation of a service contract
maintains the contract, including restrictions on trade secrets disclosure and dealings
with employer’s suppliers and customers.57 In Burn and Co. v. McDonald58, it was held
that the employers were entitled to an injunction against the servant, who had left their
service during the term of the contract.59
32. THAT in the instant case, the petitioner opted for voluntary resignation which amounts
to the petitioner’s unilateral repudiation of contract of service and hence the contract
would be binding. Reliance is placed on V.V. Sivaram case.60
33. THAT the injunction enforced a non-compete clause to protect Respondent company’s
investment in employee training and proprietary technology, ensuring fair competition
and safeguarding business interests. Such non-compete clauses can be necessary for

53
Eastham v. Newcastle United Football Club Ltd., [1964] Ch 535
54
Niranjan Shankar Golikari v. Century Spg. and Mfg. Co. Ltd., 1967 SCC OnLine SC 72
55
Sunilchand C. Mazumdar v. Aryodaya Spg. and Wvg. Mills Co. Ltd., 1962 SCC OnLine Guj 3
56
2005 (1) Cal HN 612
57
Thomas Marshall (exports) ltd v. Guinle, 1978 3 All ER 193 at 202 seq; Decro- wall international SA v.
Practitioners in Mktg Ltd., [1971] 2 All ER 216 at 223; Hill v. CA Parson and Co. Ltd., [1971] 3 All ER 1345
58
Burn and Co. v. McDonald, ILR 36 Cal 354
59
Bhardwaj, S. and Sibasish, S., 2014. Treatment of a Non-Compete Clause in M&A: Finally Clarifying the
Indian Position?. NUJS L. Rev., 7, p.263.
60
V. Sivaram v. Foseco India Limited, Pune, 2005 SCC OnLine Kar 595

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 purchasers to gain the loyalty of customers and to fully utilize the know-how
acquired.61A term restricting an employee from disclosing trade secrets and
confidential information after ceasing employment can be enforced.62 Such clauses are
valid and does not hit by Section 27 of the Indian Contract Act, 1872.
34. THAT in the case of Anindya Mukherjee v. Clean Coats Pvt. Ltd.63, it was observed
that in this global competitive world, various technical, business, commercial, sensitive
and financial information including confidential protected data formulation including
dealership network are very vital for running and developing successful business.64
The importance of such data material needs to be considered from the point of
employer and its business interest and not only employee’s point of view.65
35. THAT it is for these reasons, the Law Commission of India in its 13th Report (1959,
Para 55) noted that Section 27 was enacted at a time when trade was yet undeveloped
and the object underlying the section was to protect the trade from restraints…but
today, trade in India does not lag far behind that in England or the United States and
there is no reason why a more liberal attitude should not be adopted…we recommend
that Section 27 be suitably amended to permit reasonable restrictions.
36. THAT given the facts of the case, asserting that the non-compete agreement is one-
sided or unreasonable is unacceptable, as both Respondent and Petitioner are bound by
the agreed terms. The Petitioner’s breach of a clause, which involved access to
confidential information, constitutes misconduct and warrants the enforcement of an
injunction to protect the Respondent company’s business interests.66 The possibility of
using the client lists and confidential information just cannot be ruled out.
37. THAT it is useful to quote Mogul Steamship Company case,67 where it was held that
it is unfortunate that section 27 of the Indian Contract Act has been molded upon the
New York Draft Code and seriously trenches upon the liberty of the individual in
contractual matters affecting trade. Reliance is placed on FL Smidth Pvt. Ltd.68
38. THAT the court has issued an injunction to prevent the breach of a valid non-compete
contract, protecting the Respondent company’s legitimate business interests without

61
Faccenda Chicken Ltd v. Fowler, [1986] 1 All ER 617
62
Bombay Dyeing and Manufacturing Co. Ltd. v. Mehar Karan Singh, 2010(7) Mh.L.J. 48; Star India Pvt Ltd v.
Laxmiraj Seetharaman Nayak, 2003 (3) BomCR 563
63
Anindya Mukherjee v. Clean Coats Pvt. Ltd, 2010 SCC OnLine Bom 1681
64
Zariwala, M. F., & D’Monte, W. (2022). Scope of Non-Compete Clauses in M&A Transactions. Jus Corpus
65
Sharma, S., Wielding The Blue Pencil: A Panacea Or Bane For The Non-Compete Covenants.
66
Herbert Morria Ltd. v. Saxelby [1916] 1 AC 688 at 710
67
Rogers v Rajendro Dutt (1860) 13 Moo PC 209
68
FL Smidth Pvt. Ltd. v. Secan Invescast (India) Pvt. Ltd, 2013 SCC OnLine Mad 389

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 imposing undue hardship. Reliance is place on Sunilchand C. Mazumdar v. Aryodaya
Spg. and Wvg. Mills Co. Ltd.69
39. THAT given the petitioner’s access to sensitive information while at Respondent, there
is a significant risk of breach of confidential data if he joins a competitor. The duty to
protect such information is well-established, as demonstrated in cases like Fitch,70
Amber Size & Chemical Co71 and Forster Sons Ltd72, where lifelong restraints were
deemed necessary to prevent misuse of secret processes.73
40. THAT in Hi-Tech Systems & Services Ltd74, the court granted injunctive relief to the
plaintiff against ex-employees from using their confidential information and trade
secrets, stating that such information could harm the original employer if misused,
requiring a determination of unfair exploitation. The court stated that trade secrets
include sensitive business information such as financial arrangements, customer lists,
cost and pricing details, and marketing strategies.
41. THAT in Urmi Juvekar Chiang75, the court went on to observe in Para 39 that if such
confidential information is going to be used in competition with the plaintiff it is not
merely a matter of compensation in terms of money.” This clearly means that
injunction can be sought for, in such circumstances. Reliance is placed on Zee
Telefilms Ltd.76, Terrapin Ltd.77
42. THAT while there is no binding Supreme Court precedent explicitly exactly addressing
post-employment non-compete restrictions, the Court has acknowledged that such
clauses, intended to advance legitimate business interests, are not inherently void. The
Supreme Court has recognized that not all restrictive covenants amount to an
unreasonable restraint of trade, as long as they are designed to protect trade secrets and
business interests. Thus, it is respectfully submitted that in the present case, an order
granting ad- interim Injunction is valid.

69
Sunilchand C. Mazumdar v. Aryodaya Spg. and Wvg. Mills Co. Ltd., 1962 SCC OnLine Guj 3.
70
Fitch v Dewes, 1921 All ER Rep 13
71
Amber Size & Chemical Co v Menzel [1913] 2 Ch 239
72
Forster Sons Ltd v Suggett (1918) 35 TLR 87.
73
S.C. Mitra, Law of Contracts Pg. 304-313, (3rd Ed. Orient Publishing Company 2015)
74
Hi-Tech Systems & Services Ltd v. Suprabhat Ray & Ors., 2015 SCC OnLine Cal 1192
75
Urmi Juvekar Chiang v. Global Broadcast News Ltd. 2007 (109) Bom LR 981
76
Zee Telefilms Ltd. v. Sundial Communication Pvt. Ltd., 2003 (5) Bom. C.R. (O.S.) 404
77
Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd (1967) R.P.C 375

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 -PRAYER-

Wherefore in light of the stated facts, issues raised, arguments advanced, authorities cited,
submissions made hereto above and those to be urged at the time of hearing, the Respondents
most humbly and respectfully pray before this Honorable High Court to be pleased to adjudge
and declare:
That the present appeal challenging the order of ad-interim injunction granted by the
Court of the District Judge in Cyberpur, Kulrashtra be dismissed.
AND

Pass any other relief in the ends of Justice, Equity and Good Conscience and for this act
of kindness, the Petitioner shall as in duty bound, ever pray.

Date: All of Which Is Most Humbly and Respectfully Submitted

Place: Counsel for the Respondents

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