VENTURE STAR DEFENCE AVIATION INDIA PRIVATE LIMITED AND ANOTHER VS KETAN KUMAR 1)VENTURE GLOBAL DEFENCE CORPORATION(VCDC)

is a company incorporated and governed by laws of USA.VCDC is a company listed in new York stock exchange and has revenues in excess of USD 20 BILLION.VCDC is the registered owner of more than 200 patents registered globally including India which is conservatively estimated to be worth USD 15 BILLION. 2) BHARAT STAR DEFENCE SERVICES INDIA PRIVATE LIMITED (BSDS) is an Indian company incorporated under companies act 1956 carrying on the business as a sub-contractor in many major defence deals for Indian armed forces and is also the biggest manufacturer of small arms for Indian armed forces. 3) In 2008, with India being the 10th largest buyer of defence equipments, VCDC decided to make its foray into India in order to increase its share as top supplier of defence goods to the Indian armed forces. Due to the prevailing foreign investment regulation in defence sector at that time, VCDC entered into a joint venture with BSDS. The joint venture VENTURE STAR DEFENCE AVIATION INDIA PRIVATE LIMITED(VSDA) was incorporated under Indian companies act 1956.VCDC had also entered into a separate technology transfer agreement with BSDS as per the terms of joint venture agreement to transfer technology and technical knowhow to the newly incorporated VSDA that would enable it to manufacture its products. 4) As per the terms of joint venture agreement, VCDC has the right to nominate it employee to the position of CEO of newly formed VSDA. In June 2008, Mr.Ketan Kumar formerly a senior executive of VCDC was nominated by VCDC to the position of CEO in the newly constituted VSDA. The said nomination was unanimously accepted by Board of Directors of VSDA to fulfill his new role Mr.Ketan Kumar was seconded from VCDC to VSDA. An extract of the following clause as set out in the secondment contract between VCDC and Mr.Ketan Kumar is as follows It is hereby agreed by and b/w the parties to this employment agreement that Mr.Ketan Kumar (employee) shall be seconded from VCDC to VSDA for tenure of 3 yrs, at the conclusion of his tenure at VSD, Mr. Ketan Kumar shall return to the employment at VCDC from VSDA. 5) The employment contract of VSDA gives Mr.Ketan Kumar tenure of 3 yrs as its CEO. 6) the terms of joint venture stipulated that the senior level employees employed at VSDA were required to enter into a separate employment contract with VSDA containing a non- disclosure and non- compete clause as they had knowledge of extremely sensitive information relating to its products, customer details, technical details and market information vital to survive in a market of fierce competition. The non compete clause in the employment contracts of VSDA with its employees

(that includes the CEO) provides that every such employee who resigns from his employment at VSDA is restrained from taking employment with a competitor of VSDA for a period of 2 years after resigning from employment with VSDA.VSDA has another specific contract with Mr.Ketan Kumar providing it as follows11.0 The parties hereby agree that either party to this agreement is free to rescind this agreement by giving the other party one months prior notice of their intention of rescinding the said agreement 14.0 it has been agreed by Mr.Ketan Kumar that being the CEO he is bound by the confidentiality, non- disclosure and non- compete clauses with a greater measure of force due to his position in the company which gives him unparalleled access to trade secret, market information and matters relating to IPR of the company 7) In January 2011, Skybus Defence Corporation Ltd (SDC) was the latest entrant in the market as a private defence contractor to Indian armed forces. On 1st February 2011, Mr.Ketan Kumar announced to the board of directors of VSDA of his intention to resign as the CEO where he cited his reasons for resignation as the CEO of VSDA as accepting the position of CEO of SDC where he thereby gave a months prior notice required under the employment contract. In response to the same, VSDA sent an official email communication to Mr.Ketan Kumar on 3 rd Feb 2011,stating that he shall not be discharged from his present position as CEO at VSDA and highlighting that his term of 3yrs as CEO had not yet been completed and that on a more serious note he was bound by the employment contract which contained a non- compete clause which states that he will be restrained from taking an employment for a period of 2yrs after resigning from the employment with VSDA, provided such an employment be with a competitor of VSDA and reminded him of his obligation to VCDC who had seconded him to VSDA 8) On 4th Feb 2011, Mr.Ketan Kumar in his reply to the email communication from VSDA dated 3rd Feb 2011 threatened the company of civil action. Anticipating the same VSDA and VCDC as plaintiff 1 and 2 filed a civil suit in the city civil court Mumbai seeking injunction and specific performance contending thata) Mr.Ketan Kumar had knowingly and expressly entered into the employment contract which contained non- compete clause which set out that he shall be restrained from taking any employment with a competitor in the same line of work b)Mr.Ketan Kumar was bound by the contract which stipulated that he shall enjoy tenure of 3yrs as CEO of VSDA and further he was in breach of the contract by resigning prior to the conclusion of the said tenure. c) Further, it was also contended that Mr.Ketan Kumar having been seconded to VSDA for a term of 3yrs as per the original contract, had to return to his primary employers at the end of 3 yrs i.e. VCDC by resigning he was in breach of the terms of secondment contract

9) On 11th Feb 2011, Mr.Ketan Kumar filed a reply in the civil suit contending that a) VSDA cant restrain him from taking employment with another firm after he resigned from his present employment at VSDA and the same is untenable in law b) The non- compete clause provided in the employment contract by VSDA is bad in law when read under section 27 of Indian Contract Act,1872 and the same is void. c) The terms of secondment contract with VCDC are not capable of enforcement and these terms ought not to be specifically enforced. 10) On 1st march 2011 VSDA filed a reply affidavit in response stating that: a) Mr.Ketan Kumar being a senior official of VSDA had access to and knowledge of confidential information and IP and him having accepted employment with a competitor will be severely detrimental to VSDA b)non- compete clause provided by VSDA is not void under law as the same falls under exception given in section 3 of Competition Act 2002 which provides for protecting the intellectual property of a person c) Secondment contract is enforceable 11)In June 2011 an interim order was passed by the city civil court granting temporary injunction in favour of VSDA and VCDC and restraining Mr.Ketan Kumar for the time being from taking up his new employment with SDC. Mr.Ketan Kumar has filed a revision from the said order to the Bombay High court which is fixed for hearing 12) Argue for 1) Ketan Kumar 2) VCDC and VSDA in revision pet.