1. By this order, I shall dispose of three applications being I.A No. 5453/2008, I.A No. 5454/2008 and I.A No. 5455/2008 in CS (OS) No. 337/2008. I.A No. 5453/2008 and I.A No. 5454/2008 have been filed by Defendant No. 1 under Order 39 Rule 4 of the CPC, 1908 for setting aside the ex-parte order dated February 20, 2008 and under Section 8 of the Arbitration and Conciliation Act, 1996 for reference of the dispute between parties to arbitration respectively, and I.A No. 5455/2008 has been filed by Defendant No. 2 under Order I Rule 13 of CPC, 1908 for its deletion from the array of parties.

2. Briefly, the facts of the suit filed by the plaintiff are the following. Both the plaintiff and Defendant No. 2 deal in the sale and marketing of similar products i.e. evaporative cooling components, products and systems. The plaintiff submits that Defendant No. 1 joined M/s Artic India Sales as Area Sales Manager in 1998. The said company was a proprietary concern of Mr. Deepak Pahwa. In 2000, Defendant No. 1 was transferred to Arctic India Engineering Pvt. Ltd. with length of service counted from 1998. This company is one of the group companies owned by Mr. Deepak Pahwa and to Desiccant Rotors International Pvt. Ltd. Meanwhile, Arctic India Sales was merged with Bry Air (Asia) (P) Ltd. in 2004, which is also a group company held by Mr. Deepak Pahwa.

3. The Defendant No. 1 on his transfer to the Plaintiff Company entered into a Confidentiality Agreement with the latter on December 22, 2000 wherein he acknowledged that he was dealing with certain confidential material of the Plaintiff such as know how, technology, trade secrets, methods and processes, markets, sales, list of customers, accounting methods, competitive data, financial plans etc and stated that he would not divulge the same to third parties. On July 18, 2007 defendant no. 1 resigned from the plaintiff company and signed an Obligation Agreement on June 12, 2007 which basically provided that (i) for two years after termination of not advise, consult, serve or assist any party whose business competes with that of the plaintiff and its group companies; (ii) for two years he would not interfere with the relationship of the plaintiff with its customers, suppliers and employees; that he would not disclose the confidential information to which he was privy as employee of plaintiff to any third party; (iii) that he would deliver back all properties (tapes, notes, discs, manuals, advertising material etc) of the plaintiff which were in his possession and (iv) he would not retain copies of the above-mentioned properties of the plaintiff. In addition to the Obligation Agreement, Defendant No. 1 signed two declarations on the same day declaring that if he failed to adhere to the declarations it would amount to breach of trust and that he would take full liability and responsibility of the same.

4. The plaintiff alleges that within three months of leaving it, Defendant No. 1 joined Defendant No. 2 as its Country Manager and became in charge of marketing its products. As mentioned earlier, Defendant No. 2 deals with HumiCool products, which is in direct compe EcoCool pads in the market. In view of this, the plaintiff has made allegations of breach of trust against the Defendant No. 1 who has, as per the plaintiff, violated the declaration as well as the Obligation Agreement and the terms of confidentiality and non-compete.

5. The Plaintiff also alleges that Defendant No. 1 had made a backup of the entire data contained in his laptop, taking the said backup with him when he left the plaintiff. The information therein is averred to be confidential as it is said to include trade secrets, supplier and customer lists, business plans, strategies of trade and marketing etc. It is alleged that Defendant No. 1 has even contacted the suppliers and customers of the plaintiff on behalf of his new employer Defendant No. 2.

6. The plaintiff further submits that the above-mentioned acts