Himanshu Pathak v. Star Health And Allied Insurance Company Limited
& C.M.P.Nos.13042 of 2023 in O.S.A No.109 of 2023 and C.M.P.No.13045 of 2023 in O.S.A No.110 of 2023 M.SUNDAR,J., and K.GOVINDARAJAN THILAKAVADI, J., (Order of the Court was made by M.SUNDAR, J.) Captioned matters are listed today under the cause list caption 'FOR BEING MENTIONED'.
2. Captioned OSAs were disposed of by this Court by an order dated 12.06.2024, which reads as follows:
'IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI O.S.A (CAD) Nos.109 and 110 of 2023 & C.M.P.Nos.13042 of 2023 in O.S.A (CAD) No.109 of 2023 1/12
and C.M.P.No.13045 of 2023 in O.S.A (CAD) No.110 of 2023 Himanshu Pathak ... Appellant in both appeals Vs.
1. Star Health and Allied Insurance Company Limited Having its registered office at No.1, New Tank Street, Valluvar Kottam High Road Nungambakkam Chennnai - 600 034 Represented by its Authorised Signatory Power of Attorney Mr.Amarjeet Jhanuja Chief Information Security Officer
2. Akshit ... Respondents in both appeals Prayer in O.S.A No.109 of 2023: Original Side Appeals filed under Clause 15 of Letters Patent read with Order XXXVI Rule 9 of Original Side Rules to set aside fair and decretal order dated 07.06.2023 in O.A.No.3 of 2023 in C.S.No.1 of 2023.
Prayer in O.S.A No.110 of 2023: Original Side Appeals filed under Clause 15 of Letters Patent read with Order XXXVI Rule 9 of Original Side Rules to set aside fair and decretal order dated 07.06.2023 in 2/12
A.No.17 of 2023 in C.S.No.1 of 2023.
For Appellant : Mr.Keerthikiran Murali in both appeals For Respondents : Mr.Sankara Narayanan in both appeals Assisted by Mr.R.Pradeep
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.) This common order will now govern and dispose of captioned 'Original Side Appeals' ['OSAs' in plural and 'OSA' in singular for the sake of brevity] and captioned 'Civil Miscellaneous Petitions' ['CMPs' in plural and 'CMP' in singular for the sake of brevity] thereat.
2. A suit in O.S.No.1 of 2023 was filed in the original side of this Court and the plaint is dated 30.12.2022. The sole plaintiff which filed the suit is a Public Limited Company i.e., 'Star Health and Allied Insurance Company Ltd.,' [hereinafter 'Star' for the sake of convenience], two individuals have been arrayed as defendants and they are Himanshu Pathak [D1] and Akshit [D2]. Prayers in the suit inter alia include injunction qua publishing/sharing/dealing with the (allegedly) illegally accessed information, mandatory injunction as regards handing over alleged illegally accessed information as described in Vulnerabilities Report dated 19.12.2022 and 3/12
compensation in a sum of Rs.5 Crores. To be noted, costs and the usual residuary limb prayer also form part of the prayer paragraph in the suit.
3. In the aforementioned suit, Star took out two interlocutory applications, namely O.A.No.3 of 2023 and A.No.17 of 2023. O.A.No.3 of 2023 (hereinafter 'interim injunction application' for the sake of brevity and convenience) is with a prayer to restrain the defendants from publishing/sharing/ dealing with the alleged illegally accessed information. To be noted, this is the first limb of permanent injunction prayer in the main suit. A.No.17 of 2023 is with a prayer for appointment of an Advocate Commissioner inter alia to access and inspect the computer systems and computer networks of defendants, seize work relating to applicant etc., [hereinafter 'Advocate Commissioner Application' for convenience].
4. A Hon'ble single Judge on the original side of this Court took up aforementioned interim injunction application and Advocate Commissioner application together, heard out the same and allowed both the applications in and by a 'common order dated 07.06.2023' [hereinafter 'impugned order' for the sake of convenience].
5. Before we proceed further, it is deemed appropriate to record that in the suit on the Original Side of this Court while D1 [Himanshu Pathak] has entered appearance through a counsel and is contesting 4/12
the matter, D2 [Akshit] has been duly served by resorting to substituted service but has not chosen to come before this Court and contest the matter.
6. Reverting to the captioned OSAs assailing the aforementioned common impugned order dated 07.06.2023, while O.S.A.No.109 of 2023 is directed against the order in the interim injunction application, O.S.A.No.110 of 2023 is directed against the order in the Advocate Commissioner application (appointing Advocate Commissioner). To be noted, both the intra-court appeals have been filed by D1 in the suit i.e., Himanshu Pathak.
7. In the captioned OSAs and CMPs thereat on 27.06.2023, a Hon'ble predecessor Division Bench directed the appellant to furnish data available with him relating to Star and in the interregnum, stayed the order appointing Advocate Commissioner [order dated 07.06.2023 in A. No.17 of 2023]. This order of stay is now operating.
8. As regards the interim injunction granted by the Hon'ble single Judge vide O.A.No.3 of 2023, no order has been made by Hon'ble predecessor Division Bench and therefore, the interim injunction granted by the Hon'ble single Judge on 07.06.2023 in O.A.No.3 of 2023 is operating. In other words, two interim orders i.e., one granted by a Hon'ble predecessor Division Bench and another granted by Hon'ble single Judge are operating. 5/12
9. In the aforementioned scenario pursuant to 27.06.2023 orders of Hon'ble predecessor Bench, it comes to light that the appellant has filed the details as per directive in a sealed cover vide SR No.21905 of 2023 as this is captured in proceedings of Hon'ble predecessor Bench dated 17.08.2023.
10. In the aforesaid backdrop, today Mr.Keerthikiran Murali, learned counsel for sole appellant and Mr.R.Pradeep, learned counsel for Star (plaintiff before the Hon'ble single Judge) are before us. In the aforementioned scenario, learned counsel on both sides fairly consented to the main suit to be heard out within a time frame subject to appointment of a dedicated Commissioner [a retired District Judge] for recording of evidence and marking of documents and subject to the further understanding that the aforementioned two interim orders, one granted by Hon'ble Predecessor Bench staying appointment of Advocate Commissioner by Hon'ble single Judge and another being interim injunction granted by Hon'ble single Judge vide impugned order dated 07.06.2023 will continue to operate till the disposal of the suit.
11. In the light of the narrative thus far, the following order is made:
i) Second respondent before us [Akshit] (D2 in the suit before 6/12
Hon'ble single Judge) is set ex parte;
ii) The written statement filed by D1 (appellant before us) vide Diary No.2794 of 2024 dated 29.01.2024 shall be taken on file. To be noted, the suit is not governed by 'The Commercial Courts Act, 2015 [Act 4 of 2016]' {hereinafter 'CCA' for the sake of brevity}and therefore, 120 days cap vide proviso to Order VIII Rule 1 of 'the Code of Civil Procedure, 1908 (5 of 1908)' [hereinafter 'CPC' for the sake of brevity, convenience and clarity] as substituted by CCA does not come into play;
iii) Captioned suit shall be listed before Hon'ble single Judge as per Roster on 18.06.2024 for framing issues. Learned counsel on both sides undertake to file draft issues and complete the exercise of framing issues on or before 28.06.2024;
iv) Mr.G.Karunanithi, learned District Judge (Retd.,) at th Cross Road, Indra Nagar, Adyar, No.17/9, Kumar's Ragamalika, 10 Chennai - 600 020 [Mob: 9962488289] is appointed as Commissioner to record evidence and mark documents (exhibits); v) Learned Commissioner shall hold sittings either in the Arbitration Centre or in the Mediation Centre under aegis of this Court;
vi) Directors of Arbitration Centre and Mediation Centre are requested to make necessary arrangements, if any request is made in 7/12
this regard by learned Commissioner;
vii) Learned Commissioner shall not have any adjudication powers. If any objection is raised regarding marking of documents or deposition, the same shall merely be recorded by the learned Commissioner and Hon'ble single Judge hearing the suit will take a call when the main suit is decided;
viii) Learned Commissioner shall commence the aforementioned exercise on 01.07.2024 and complete the same as expeditiously as possible but in any event by 31.07.2024; ix) The remuneration / honorarium for the learned Commissioner for this entire exercise is fixed at Rs.1.5 lakhs and this sum shall be borne in equal moieties by the plaintiff Star and Mr.Himanshu Pathak (D1);
x) Expenses in terms of rent for Arbitration/Mediation Centre etc., shall also be borne by both parties in equal moieties; xi) Learned Commissioner shall send the deposition and marked exhibits in a sealed cover to the Hon'ble Roster Judge through learned Registrar General of this Court;
xii) Hon'ble single Judge (Roster Judge) is requested to dispose of the main suit as expeditiously as the business of the Court would permit preferably by 30.08.2024;
xiii) Interim order granted by Hon'ble predecessor Judge in 8/12
C.M.P.No.13045 of 2023 in O.S.A.No.110 of 2023 staying the order of Hon'ble single Judge appointing Advocate Commissioner will continue to operate till the disposal of the suit;
xiii) Order of interim injunction granted by Hon'ble single Judge in O.A.No.03 of 2023 vide order dated 07.06.2023 which is under challenge in O.S.A.No.109 of 2023 will also continue till disposal of the main suit;
xiv) Though obvious we make it clear that we have not expressed any view or opinion on the merits of the matter and therefore, Hon'ble single Judge shall decide the suit on its own merits and in accordance with law untrammeled by any proceedings before Hon'ble Division Bench or its earlier interim order dated 07.06.2023; Captioned two OSAs and captioned two CMPs thereat are disposed of in the aforesaid manner with the aforesaid directives. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.) 12.06.2024 Index:Yes/No gpa P.S. I: Upload forthwith P.S.II : All concerned including the Registry of Madras High Court to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water 9/12
marked, besides being QR Coded.
P.S:III: Registry to communicate copy of this order to Directors of Arbitration and Mediation Centre.'
3. Three typographical errors have crept in. One is, captioned OSAs were not before 'Commercial Appellate Division' ['CAD']. Therefore, within parenthesis 'CAD' has been wrongly typed and the same has to be removed and read as 'O.S.A.Nos.109 and 110 of 2023'. Second is, 'O.S.No.1 of 2023' in paragraph 2, should read as 'C.S.No.1 of 2023'. Third is, in the appearance portion, 'For respondents in both appeals' should read as 'For Respondent No.1 in both appeals'. In all other respects, order dated 12.06.2024 will remain the same. On this order being uploaded, this will serve as a corrigendum / errata qua 12.06.2024 judgment.
4. As regards R1, Mr.N.P.Vijayakumar, learned counsel has given change of vakalat and Ms.M.Laxmi Sree (Enrollment No.3542/2023), learned counsel of M/s. S.Ramasubramaniam and Associates (Law Firm) 10/12
having office at No.75, Century Cenre, TTK Road, Alwarpet, Chennai600 018 has entered appearance and both Mr.N.P.Vijayakumar and Ms.M.Lakshmi Sree are before this Court and they consent for this order. [M.S.,J.] [K.G.T.,J.] gpa 05.08.2024 11/12
M.SUNDAR,J., and K.GOVINDARAJAN THILAKAVADI, J., 05.08.2024 12/12