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2024 DIGILAW 1760 (GUJ)

KHS MACHINERY PVT LTD. v. VISHNU SHUKLA

2024-08-23

A.Y.KOGJE, SAMIR J.DAVE

body2024
JUDGMENT : A.Y. KOGJE, J. 1. The petition is filed praying for initiating contempt proceedings against the respondents for their alleged willful disobedience of order dated 25.07.2018 passed by the Division Bench of this Court in Appeal from Order No. 145 of 2018. According to the petitioner, the respondents have been restrained from using the confidential information/ software/know-how and business secrets in manufacturing machinery. 2. It is a case where some of the respondents were originally in employment of the petitioner, a Private Limited Company and during their employment, they became acquainted with several aspects of the business including technical aspect, which according to the petitioner is highly specialized technology. However, in breach of their agreement, when they parted and opened another company, they used the same technology to manufacture their machinery. For such breach, the petitioner filed Commercial Trademarks Civil Suit No. 31 of 2017 [Sic-Commercial Civil Suit No. 321 of 2016)] in the Commercial Court. The Commercial Court passed order dated 09.03.2018 granting injunction in favour of the petitioner. The aforesaid order was subject matter of challenge in Appeal from Order No. 145 of 2018, which came to be disposed of by judgment and order dated 25.07.2018, confirming the injunction granted by the Commercial Court. 3. Learned Senior Advocate for the petitioner took this Court through the order passed by the Commercial Court as well as the order passed in Appeal from Order dated 25.07.2018 and submitted that this Court has passed CAV judgment in great detail and confirmed the order of the Commercial Court and therefore, the petitioner has also invoked Article 215 of the Constitution of India. The actions of the respondents would amount to breach of directions of this Court. 3.1 Learned Senior Advocate for the petitioner has argued that by the order passed by the Commercial Court, the respondents were prohibited from entering with the business deals, which would amount to sale of machinery which is built on the technology of the petitioner company. 3.2 Learned Senior Advocate for the petitioner has emphasized that the technology of the petitioner was highly sophisticated and was developed by their principal company of Germany and the technology was in exclusive know only of the petitioner. 3.2 Learned Senior Advocate for the petitioner has emphasized that the technology of the petitioner was highly sophisticated and was developed by their principal company of Germany and the technology was in exclusive know only of the petitioner. It is further submitted that respondent Nos.1 and 3 were the employees of the petitioner and during their employment, they were trained by the petitioner by incurring expenditure, even their travel to Germany. 3.3 It is submitted that after having gained all the knowledge and technology at the cost of the petitioner, the respondents have ditched the petitioner and started their own company. This company has straightaway lifted the technology of the petitioner and started marketing it. 3.4 It is submitted that in the process, the respondents, who were aware of the potential clients of the petitioner, they have stolen such clients from the petitioner. It is submitted that the respondents were selling the same technology and machinery in the market came to the knowledge through their own clients when their clients had installed their machinery through the respondents, but as there was fault in machinery, the petitioner’s engineers were contacted and during their visit, they found that the technology used, the machinery installed and the software meant for running the machinery were identical to that of the petitioner. 3.5 Learned Senior Advocate for the petitioner therefore immediately took this Court to various documents annexed to the petition in the form of photographs and diagram to explain how the machinery installed by the respondents at the client’s place of the petitioner completely and totally resembled that of the petitioner. He laid emphasis on the fact that the display of parameters controlling the machinery were also written in German language, which makes it clear that the technology used by the respondents is that of the Germane principal of the petitioner, which has authorized only the petitioner to use such technology. It is submitted that the respondents have no agreement with any German company for technical know how. 3.6 It is submitted that during the service period in the petitioner company, it was found that respondent No. 3 had resorted some dishonest activities and duped the petitioner money for their personal gain and therefore, the petitioner company had to terminate the services of respondent No. 3. 3.6 It is submitted that during the service period in the petitioner company, it was found that respondent No. 3 had resorted some dishonest activities and duped the petitioner money for their personal gain and therefore, the petitioner company had to terminate the services of respondent No. 3. It is submitted that respondent No. 3 had colluded with respondent No. 1, who had illegally diverted confidential information, know how, business secrets, while working with the petitioner company in collusion with respondent No. 2. It is submitted that it was found by the petitioner that the respondents have been using their confidential information /know how /business secrets to develop their own business and hence, a legal notice was also issued to the respondents to now use any confidential information. 3.7 It is submitted that a tripartite agreement dated 23.10.2012 came to be executed between the petitioner company on one hand and respondent Nos.1 to 4 and 6 on the other and respondent Nos. 1 to 4 and 6 have agreed on their wrong doings and to stop unauthorized use of the petitioner’s confidential information. 3.8 It is submitted that despite the agreements between the petitioner and the respondents herein, the respondents have been using the confidential information, business secrets and intellectual properties of the petitioner company and have been selling the machineries which are manufactured by using the confidential information. 3.9 It is submitted that the petitioner has also initiated criminal proceedings against the respondents herein. It is submitted that the investigation officer had seized one laptop of the present respondents. It is submitted that the said laptop was sent to the Forensic Science Laboratory at Gandhinagar. Even as per the report of FSL dated 04.03.2017, there are more than 800 files of the petitioner company found in the hard disc in the laptop of the present respondents. 3.10 A further affidavit is filed on behalf of the petitioner on 10.03.2022 by its Senior Manager stating that on behalf of the petitioner, he had carried market survey and found from the market various machineries of KHS portfolio sold by the respondents in various parts of the country. Reference is also made to ex parte order by the City Civil Court, Bengaluru on 14.02.2020 to emphasis the submissions of learned Senior Advocate for the petitioner. 4. Reference is also made to ex parte order by the City Civil Court, Bengaluru on 14.02.2020 to emphasis the submissions of learned Senior Advocate for the petitioner. 4. As against this, learned Advocate for the respondents has argued that the respondent company, an MSME, has grown after 2012 through sheer hard work, commitment, on the basis of its own knowledge and expertise and in collaboration of various experts and established inter alia, placing on record multiple strategic partnerships and technology transfer agreements, collaborating with various local vendors who provided their goods and services. The respondent company is an organization of about 100 persons at various positions, with several engineers having vast knowledge, experience and skills with joint efforts. The customer list of the respondents include reputed multinational companies having distinct legal and technical division. 4.1 Learned Advocate has argued that it is settled law that where breach of injunction is alleged, the appropriate remedy is an appeal under O-39, R-2A of the Civil Procedure Code, but to damage reputation of the respondents, contempt of Court is initiated. 4.2 It is submitted that while on one hand, the respondents have shown that the respondents are carrying on their profession by utilizing their own skill and information mentally retained by them and by soliciting them independently, the petitioner has failed to even aver that what they are alleging to be acts of contempt is not what is mentally retained by the respondents or what is on the basis of utilizing their own skill or by soliciting them independently. In absence of such categorical averment and in view of the material produced by the respondents showing that they are carrying on their profession on the basis of their own skill and information mentally retained by them and by soliciting them independently, no cause of action arises. 4.3 It is submitted that the petitioner, while invoking contempt jurisdiction, is required to categorically and conclusively establish the act which has resulted in willful disobedience of the order. The petitioner has not only failed to aver that the trade carried on by the respondents is not by utilizing their own skill and information mentally retained by them or by soliciting them independently, but has also failed to show how contempt is made out. The petitioner has not only failed to aver that the trade carried on by the respondents is not by utilizing their own skill and information mentally retained by them or by soliciting them independently, but has also failed to show how contempt is made out. None of the incidents which are mentioned as incidents to prove contempt, establish in any way any violation on the part of the respondents to the order passed by the City Civil Court and therefore, no case for contempt if made out on merits. 4.4 It is submitted that it is settled in law that the Court, in contempt jurisdiction, does not order a roving inquiry. Learned Advocate for the respondents relied upon decision of this Court in case of Anjaliben Prakashbhai Trivedi Vs. Jaydeepshin K. Rathod in MCA No. 567 of 2022 dated 13.09.2022, decision of the Punjab & Haryana High Court in case of Kamlesh Kumari & Anr. Vs. Shakti Sagar Bhatia & Ors. 2017 SCC Online P&H 1108 and decision of the Rajasthan High Court in case of Adarsh Saraswati Mahila Shiksha Avam Gramin Vikas Samiti Vs. Shri Naveen Jain & Anr. 2016 SCC Online Raj. 4220. 4.5 It is submitted that the petitioner has used contempt to scare off potential buyers of the respondents and to kill competition. This Court issued notice in this petition on 02.04.2019. Immediately thereafter, the petitioner has written letters to various market leaders. The respondents are constrained to file a suit for defamation being CS CCC 555 of 2022 before the City Civil Court, Ahmedabad. 5. In rejoinder, learned Senior Advocate for the petitioner has emphasized on the report of the experts. According to learned Senior Advocate for the petitioner,, the experts have observed that on basis of Operating Manual if CARBOMIX given by the respondents to WEIZMANN (which is same as PARAMIX of the petitioner) and Operating System, i.e. highly confidential information supplied to run the said machine. Technical Experts have observed that “operating system of the petitioner company was found in machines sold by the respondents”, meaning thereby all the machines supplied by the respondents can easily be run/operated by the respondents by using technical know how/operating system of the petitioner company. Technical Experts have observed that “operating system of the petitioner company was found in machines sold by the respondents”, meaning thereby all the machines supplied by the respondents can easily be run/operated by the respondents by using technical know how/operating system of the petitioner company. 5.1 Referring to the case law cited by learned Advocate for the respondents, learned Senior Advocate for the petitioner has argued that the petitioner has not filed this contempt petition for execution of any order passed by this Court and therefore, in view of the judgment rendered in case of Welset Engineers Vs. Vikas Auto Industries, 2015 (10) SCC 609 , provisions of O-39, R-2A of the Civil Procedure Code would not be applicable. 5.2. Having heard learned Advocates for the parties and having perused documents on record, it appears that the issue at the root is the technology pertaining to the business of manufacturing and marketing of filling, packaging and processing machineries for beverages and foods and also to develop software for operation and functioning of the machine. The examples of these types of machines are bottle filling plants of tin filling and packing plants,where entire process of mixing of ingredients to processing and packaging of products with minimum human interference. According to the petitioner, this manufacturing and installation of the machineries needs technical know how, where the petitioner has acquired through a Know-how Agreement with Gmbh, a German company. 6. Before proceeding further, the Court may list down the orders passed by this Court from time to time: Order dated: 02-04-2019 “Notice returnable on 30th April, 2019.” Order dated: 23-02-2022 “Mr. M.I. Hava, learned counsel appearing for the respondents has since been circulated sick note, re-list this matter on 10.3.2022.” Order dated: 16-03-2022 “At joint request, re-list this matter on 07.06.2022.” Order dated: 23-06-2022 “Learned Advocate for the applicant Mr. Sachin Vasavada seeks time. Let the matter be listed on JULY 1, 2022.” Order dated: 29-04-2023 “In view of leave note filed by Mr. Sachin Vasavada, learned advocate appearing for the applicant, re-list this matter on 13.06.2023.” Order dated: 13-06-2023 “Learned advocate Ms.Megha Jani requests for some time in order to file an affidavit-in-reply. The same shall be filed on or before the next date of hearing. The matter is kept on 27.06.2023.” Order dated: 27-06-2023 “Learned advocate Ms.Jani requests for some time in order to file an affidavit today itself. The same shall be filed on or before the next date of hearing. The matter is kept on 27.06.2023.” Order dated: 27-06-2023 “Learned advocate Ms.Jani requests for some time in order to file an affidavit today itself. The matter is kept on 13.07.2023.” Order dated: 13-07-2023 “At the request of the learned advocate Ms. Megha Jani appearing for the respondent nos.1 to 5, the matter is kept on 26.07.2023.” Order dated: 26-07-2023 “1. It is noticed by us that the Affidavit dated 22.6.2022 filed by Apurva Girishbhai Dave, an Authorized Person of the Petitioner – Company, is missing in the file. 2. Learned Senior Advocate Mr. Shalin Mehta appearing with learned Advocate Mr. Sachin D. Vasavada for the Petitioner has requested to file the same afresh in case the Registry is unable to find it out. 3. By the next date of hearing, it will be open for the Petitioner to file the Affidavit dated 22.6.2022 filed by Apurva Girishbhai Dave. The Petitioner shall also file the Report of the Commissioner dated 26/27.10.2016. 4. The matter is stand over to 3.8.2023” Order dated: 03-08-2023 “On the request of the learned advocate Ms. Megha Jani, appearing for learned advocate Mr. M.I. Hava, the matter is kept on 22.08.2023.” Order dated: 18-09-2023 “At the request of learned advocates, re-list on 11.10.2023.” Order dated: 11-10-2023 “Submissions of learned senior counsel Mr. Shalin Mehta are concluded. For reply, learned senior counsel Ms. Megha Jani seeks time. Re-list the matter on 12.10.2023.” Order dated: 12-10-2023 “Submissions of learned counsel Ms. Megha Jani are continuing. Re-list on 16.10.2023.” Order dated: 16-10-2023 “Submissions of learned advocate Ms. Megha Jani are continuing. Hence, re-list this matter on 17.10.2023.” Order dated: 18-10-2023 “When the matter is taken up for hearing, learned advocate Mr. Sachin D. Vasavada appearing for the applicant has submitted that learned senior advocate Mr. Shalin Mehta is having some personal difficulty and as such he has requested for some breathing time. Since in part-heard matter, the Court would not have granted the time, but in view of the peculiar background of facts, in which, proper instructions are to be taken by learned advocate Mr. Vasavada with regard to an issue of maintainability, we re-list this matter on 23.10.2023.” Order dated: 23-10-2023 “The submissions of learned advocate Ms. Megha Jani for the contesting opponent are over. For brief rejoinder, learned advocate Mr. Vasavada with regard to an issue of maintainability, we re-list this matter on 23.10.2023.” Order dated: 23-10-2023 “The submissions of learned advocate Ms. Megha Jani for the contesting opponent are over. For brief rejoinder, learned advocate Mr. Sachin Vasavada, for the applicant seeks time. Re-list the matter on 26.10.2023.” Order dated: 26-10-2023 “The submissions of both the learned advocates appearing on behalf of the respective parties, are concluded. Time is sought for to submit written submissions in brief along with necessary page numbers. The written submissions in brief to be submitted on or before 10.11.2023. Re-list the matter on 10.11.2023.” Order dated: 10-11-2023 “At the request of learned advocate Mr. Sachin D. Vasavada for the applicant, re-list the matter on 6.12.2023.” Order dated: 06-12-2023 “In view of the fact that written submissions are tendered on record, stand over to 17.01.2024.” 7. The Court may now refer to the order passed in the proceedings before the Commercial Court and the Appeal from Order. The Commercial Suit was originally numbered as Civil Suit (Comm.) No. 321 of 2016, wherein notice of motion (Exh.6-7) was moved for prayer as under: “35(A) to grant an order and decree of permanent injunction restraining the defendants, their directors, partners, successors, servants, agents, dealers and distributors from using intellectual properties including but not limited to know-how, technical knowledge, customised manufacturing machinery as mentioned in Annexure “A” and copyright protected customised computer software, database, drawings, process information and details, circuit diagrams, patents, and other copyright protected materials and confidential information of the plaintiff.” 7.1 In this suit, ex parte interim relief was granted on 24.10.2016 as under: “18. Hence, in view of the aforesaid, an ex-parte ad- interim injunction be issued in favour of the plaintiffs and against the defendant in terms of Para 35(A) of the present application, till next returnable date.” 7.2 The Commercial Court in its order dated 09.03.2018 has recorded as under: “3........that the present suit was filed as Commercial Civil Suit No. 321 of 2016. At the stage of admission, an ex-parte ad-interim injunction came to be granted in terms of para 35(A) of the application for interim injunction vide order passed on 24/10/2016. At the stage of admission, an ex-parte ad-interim injunction came to be granted in terms of para 35(A) of the application for interim injunction vide order passed on 24/10/2016. Thereafter, in view of the directions issued by the Hon’ble High Court of Gujarat, vide letter No. 2912- 13/2016 dated 16/01/2017, the suit came to be renumbered as Commercial Trade Mark Civil Suit No. 31 of 2017 as per order passed on 13/06/2017 below Exh.1.” 7.3 Considering the relief prayed for by the petitioner in the notice of motion, Exh.6-7, the respondents filed an application, Exh.34 under O-7, R-11(a) and (d). The petitioner filed a pursis Exh.118 as under on 05.08.2017: “The advocate for the plaintiff under instruction, declare as under: Without prejudice to rights and contention of plaintiff, the plaintiff declare that present suit is filed under the Common Law right Law of Torts, breach of confidential information know-how and breach of trust and not under statutory rights available to the plaintiff under Patents Act, Designs Act, Copyright Act and Trademark Act as raised by the defendants. The plaintiff reserves it right to file or pursue appropriate action under the above referred Acts and this pursis in the present suit shall not come in way of plaintiff to file and pursue such action.” 7.4 Thereafter, the Commercial Court passed order on the same day below Exh.34 as under: “1. By way of tendering the present application while invoking the provisions of Order 7, Rule 11(a) and (d) of the Code of Civil Procedure, 1908, the defendant sought to reject the plaint of the plaintiff in its entirety on the grounds more particularly stated in the memo of the application. 2. On being served with the process of the present application, the plaintiff while resisting the contentions of the defendant, lodged objection and submitted to reject the application. 3. The matter has been heard at length on the issue as to jurisdiction of this Court. 2. On being served with the process of the present application, the plaintiff while resisting the contentions of the defendant, lodged objection and submitted to reject the application. 3. The matter has been heard at length on the issue as to jurisdiction of this Court. However, during the course of hearing the learned Advocate appearing for the plaintiff has passed pursis at Exh.118 and the contents in the form of declaration made by the plaintiff have been duly endorsed and acknowledged by the learned Advocate appearing for the defendant while making an endorsement seeking to not press the present application while requesting to permit the defendant to reserve the right to raise the contentions as to the cause of action, and the issue on the basis of the suit being barred by Law of Limitation and the said endorsement has been duly acknowledged by the learned Advocate appearing for the plaintiff. 4. Hence, in view of the aforesaid, the present application stands disposed of as “not pressed.” 7.5 In the bipartite hearing of notice of motion, the Commercial Court has assigned reasons that the respondents were in employment of the petitioner and during the course of their employment, obtained confidential information and know-how who, after their retirement and termination respectively, entered into a Tripartite Agreement assuring and undertaking not to use and divulge confidential information, know-how etc. as particularised in the Tripartite Agreement, are required to be restrained only to the extent of using the confidential information, know-how, technical knowledge, customised manufacturing machinery of the plaintiff only till final disposal of the suit. 7.6 Since the relief as sought for by the petitioner falls under the statutory rights available to the petitioner under Patents Act, Designs Act, Copyright Act and Trademarks Act and the reliefs so sought to that extent have not been pressed while reserving its right to pursue appropriate action. 7.7 Thereafter, the operative part of the order, relevant for our purpose is as under: “(1) The present Notice of Motion stands partly allowed. (2) The defendants, their directors, partners, successors, servants, agents, dealers and distributors are hereby restrained from using the confidential information, know-how, technical knowledge, customised manufacturing machinery of the plaintiff mentioned in ANNEXURE -A produced at item No. 8 with the list Exh.4, till final disposal of the suit. (2) The defendants, their directors, partners, successors, servants, agents, dealers and distributors are hereby restrained from using the confidential information, know-how, technical knowledge, customised manufacturing machinery of the plaintiff mentioned in ANNEXURE -A produced at item No. 8 with the list Exh.4, till final disposal of the suit. The ex-parte ad-interim relief granted on 24/10/2016 in terms of Para 35(A) accordingly stands modified and the rest of the ad-interim reliefs granted earlier forthwith stand vacated. (3) It is made clear that the aforesaid order is not meant to preclude the defendants who otherwise are free to carry on their profession by utilizing their own skill and information mentally retained by them, or by soliciting them independently. (4) The rest of the reliefs sought for by the plaintiffs are hereby disposed of as “not pressed” in view of the observations made hereinabove. (5) In view of the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, Registry to place this matter for admission and denial of documents and for framing issues after concluding the exercise of admission and denial of documents. (6) The parties to the suit will file documents in their power and possession within six weeks and admission/denial of these documents be done by filing an affidavit attaching thereto an index of documents of other side containing an additional column of endorsement of admission/denial. (7) It is hereby clarified that the findings arrived at by this Court are tentative which will have no bearing when the matter is decided at the final stage after considering the evidence led by the parties. (8) List before the Court for framing issues according to rotation. (9) The Notice of Motion accordingly stands disposed of with no order as to costs.” 8. It is pertinent to observe that when the present petition was filed, neither the pursis, order below Exh.34 or order dated 09.03.2018 were placed on record, but the same were placed on record with the affidavit in reply of the respondents. 9. In the Appeal from Order, this Court in CAV judgment dated 25.07.2018 has held in Para-33 as under: “33. 9. In the Appeal from Order, this Court in CAV judgment dated 25.07.2018 has held in Para-33 as under: “33. In view of the aforesaid, this Court is of the view that for the reasons stated in the impugned order as well as for the reasons recorded by this Court, no interference is called for in the impugned order dated 03.09.2018 below Exhibits 6 and 7 in Commercial Trade Mark Civil Suit No. 31/2017. The Court also finds that the relief granted vide the impugned order is equitable and is balancing the respective rights of both the parties. Hence, also no interference is called for.” 10. Therefore, the case of the petitioner is to the effect that the respondents cannot do any business and that whatever they do is on the basis of confidential information of the petitioner only and in furtherance to such contention, the petitioner has relied on additional affidavit, which lists 7-8 companies and the machines sold to them. 10.1 This aspect being a fact disputed by the respondent, which would be adjudicated based on the evidence led by the parties. Any adjudication of such disputed facts by this Court is beyond the scope under contempt jurisdiction and further will render the trial infractuous. Therefore, the said contention of the petitioner is not accepted considering the order passed by the trial Court, which has categorically permitted the respondents to carry on their profession by utilizing their own skill and information mentally retained by them or by soliciting them independently. 11. The petitioner has based this contempt proceeding on three broad instances, firstly alleged similarity in the software programme for operating the beverage mixing machine installed at WEIZMANN (a company), to which the respondents have taken stand that the relations between WEIZMANN and the respondent company is strained on account of non-payment of dues by WEIZMANN to the respondent company for which Special Civil Suit No. 674 of 2018 is filed by the respondent company against them. It is argued that while the petitioner seeks to compare products of the petitioner with that of the respondents, it does not say as to who made this comparison. Apart from this, the comparison chart shows the location and year of KHS machines, whereas nothing is mentioned so far as respondent company is concerned and the petitioner has merely endorsed the alleged software, which aspect is also denied by the respondents. Apart from this, the comparison chart shows the location and year of KHS machines, whereas nothing is mentioned so far as respondent company is concerned and the petitioner has merely endorsed the alleged software, which aspect is also denied by the respondents. 11.1 Secondly, the expert opinion opining that upon comparison, operating system of the petitioner company was found in machine sold by Rapid Company (the respondent company). Also the FSL report, where files of the petitioner was found in the computer system. Principally, an opinion of the expert is only an opinion, of which, if at all any cognizance is to be taken then it has to be done upon leading evidence, which exercise is yet to be undertaken in the Civil Suit pending between the parties. Moreover, the respondents have contended that the expert opinion is based on the drawings /photographs contained in a manual book and a manual book can never be confidential information since a manual book is a handout which is given with every machine to every client for the purposes of operating and maintaining the machines. Further each such manual is unique to the Project implemented which as such comprises of many machines working in tandem with each other to give the desired out put which is always customised as per the customer needs. 11.2 Further the petitioner has not provided any details or identification or what /which confidential information or technical know how of the petitioner was used by the respondents. The respondents have raised a contention that the manuals of the petitioner are freely circulated in masses amongst the customers of the petitioner and are easily available in the Beverage Industry across the World. The said images are not therefore a trade secret or confidential information or technical know how of the petitioner, but merely specifications and depictions of information provided for the purposes of marketing and operating of the machines. As a general industry practice, such manuals are provided by the manufacturers to their customers as a Training and Maintenance Manual and in case of second hand sale of the machines, such manuals are provided to the buyers on a regular basis. The respondents are engaged in purchase and refurbishing of second hand machines and are therefore in regular possession of such manuals of the petitioner as well as of various other companies. The respondents are engaged in purchase and refurbishing of second hand machines and are therefore in regular possession of such manuals of the petitioner as well as of various other companies. In fact, the respondents have also taken an expert opinion, who has opined (Annexure-J) that there is no similarity in confidential information or know-how (technical) as there are other methods, inputs and technical knowledge which has also gone into manufacturing machine. Therefore, with rival opinions of experts on the machines, this Court cannot conclude based on expert opinion that contempt is committed. 11.3 Thirdly, by comparison of pictures and software, the respondents have contended that the petitioner has failed to make out that the alleged designs/comparison a page Nos.88, 89 and 90 were used by the respondents after 2016. The pictures at page No. 92 is machine developed by the respondents by using the technology of another company i.e. Gebo Cermex, a copy of the invoice is annexed with the affidavit in reply of the respondents and further a copy of the partial agreement is also annexed with this affidavit in reply to further affidavit. A copy of the designs and layouts as shared by said Gebo Cermex pursuant to its technology collaboration with the respondents. At page No. 93, there is only a snipped of a large conveyor machine. That a conveyor machine is always customised based on factors like space availability, container to be conveyed, speed required, substance to be filed, etc. The petitioner has captured a snipped /small section of a huge machine which cannot provide a fair comparison. It was contended that the respondents have been setting up machines using the hardware and software of petitioner company at the site of the customer. To this it appears that, alleged pictures from the factory of the respondent company does not in any way even point to the use of confidential information. The comparison is only of the photos and no confidential information is compared. The pasteurizer is manufactured using the technology of Gebo Cermex pursuant to a technology transfer arrangement as already 1stated above. The comparison at page Nos. 100 and 101 is relating to bottle washer and beverage mixing machines. The bottle washers being manufactured by the respondents are indigenously designed and developed by using the software solid work, which software has not been used by the respondents during their employment with the petitioner. The comparison at page Nos. 100 and 101 is relating to bottle washer and beverage mixing machines. The bottle washers being manufactured by the respondents are indigenously designed and developed by using the software solid work, which software has not been used by the respondents during their employment with the petitioner. The beverage mixing machine being supplied by the respondent is entirely different than that of the petitioner. 12. The Court is of the view that the petitioner wants this Court to act under contempt jurisdiction accepting that all the instances pointed out are irrefutable and have to be treated as admitted. However, the Court finds that on facts, the respondents have controverted these instances, giving semblance of explanation which will have to be therefore tested on the basis of evidence laid by both the sides, for eg. the experts’ opinions are placed on record by both the sides and justifying their respective stand. Now, which expert’s opinion is more correct, cannot be an exercise under contempt jurisdiction. This Court in case of Anjaliben Prakashbhai Trivedi Vs. Jaydeepshin K. Rathod (supra) in MCA No. 567 of 2022, in this regard, held in order dated 13.09.2022 as under: “6. It is further a settled position of law that while dealing with the contempt petition, the Court is not expected to conduct a roving inquiry and the said principle would apply with same vigor when disputed questions of fact are involved and as such, when two views are possible, such disputed version would be normally outside the realm of contempt jurisdiction and as such looking to the facts on hand, in the context of the directions which are issued by the Hon’ble Apex Court, we are of the opinion that no satisfactory case is made out by the applicant which may persuade us to initiate contempt proceedings and further the applicant is not remediless. She can either file a criminal prosecution or take appropriate measures permissible under the law and one of the measure is already set in motion in the form of complaint having already been filed against the accused persons, as such we deem it proper not to exercise our jurisdiction in favour of the applicant.” 13. Similarly, a Single Judge of the Rajasthan High Court in case of Adarsh Saraswati Mahila Shiksha Avam Gramin Vikas Samiti (supra) in Para-8 held as under: “8. Similarly, a Single Judge of the Rajasthan High Court in case of Adarsh Saraswati Mahila Shiksha Avam Gramin Vikas Samiti (supra) in Para-8 held as under: “8. This Court has to prima-facie satisfy itself, whether the respondents are in willful disobedience of the order of this Court or not. It is an intention and willful part for which the Court will be considered to take the respondents to task. This Court in contempt petition can neither hold investigation nor roving enquiry. Since this Court is satisfied that the respondents have not willfully disobeyed the order of this Court, no further directions are called for and the present petition is dismissed.” 14. The contentions raised by learned Advocate for the respondents regarding the cause of action available with the petitioner under O-39, R-2 of the Civil Procedure Code and therefore, questioning the maintainability of contempt petition, in this regard, the Court is unable to accept the contention in view of the “doctrine of merger”. Recently, this Court itself in case of Shri Aniket Basant Agrawal & Anr. Vs. Shri Arul Lalit Aggarwal, Chamaria Fashions Private Limited in MCA No. 1860 of 2023 by order dated 14.08.2024 has, as a preliminary issue upheld that once the Higher Forum has approved of the orders /judgments of the Tribunals or Courts, the order of the Court/Tribunal merges with the order of the Higher Forum and therefore, Article 215 of the Constitution of India can be invoked in the present case. 15. However, the nature of litigation between the parties precariously poised for ultimate decision by the Civil Court, we may refer to the decision of the Apex Court in case of Quantum Securities Pvt. Ltd. & Ors. Vs. New Delhi Television Ltd. AIR 2015 SC 3699 and prefers to adopt the same mode. In Para-23 to 25, the Court has held as under: “23. We are also of the considered view that when the issue on merits is seized of by the original court in civil suit/proceedings and rights of the parties are still not decided on merits then it is not proper for this Court to probe into the facts and record any finding on any of the issues arising out of collateral proceedings such as the one here else our observation may cause prejudice to the parties while prosecuting their case before the original court on merits. 24. 24. It is for these reasons we are of the considered opinion that it would be apposite to request the learned Single Judge to decide Notice of Motion No. 1553/2013 renumbered as 488/2014 arising out of Civil Suit No. 677/2013 renumbered as 284/2014 on merits in accordance with law preferably within three months from the date of receipt of copy of this judgment. Till it is decided, we are inclined to stay the contempt proceedings out of which these appeals arise. After the disposal of the Notice of Motion, the contempt proceedings may be decided in accordance with law including its maintainability etc. 25. Needless to say, since we have refrained from giving finding on merits on any of the issues and hence the concerned Courts, which are seized of the civil suit/ proceedings in question, would decide the matter on merits strictly in accordance with law without being influenced by our observations made herein.” 16. The Court may lastly observe that the petitioner is a company with no individual name to represent the company before this Court. In the title of the case, the petitioner has arraigned one company and one partnership enterprise (respondent Nos. 5 and 6) and 4 individuals based on their relation with respondent Nos. 5 and 6, but no specific act is attributed to any of the 4 individuals. Respondent No. 2 being wife of respondent No. 3 and a partner in respondent No. 6. 17. The Court is therefore of the view that the purpose for the petitioner to file this petition is to build some type of pressure upon the respondents by the contempt proceedings and to get some monopolistic benefits out of it as ultimately, both are rivals in the same business, sharing common space. In the opinion of the Court, where Court is able to find some foothold for such a scope, this Court may not initiate contempt proceedings. 18. For the aforesaid reasoning, the Court is not inclined to initiate any contempt proceedings based on the facts on record. The petition therefore deserves to be and is hereby dismissed. Notice is discharged. No order as to costs.