Mvf 3 Aps & Ors vs Mr. M. Sivasamy And Ors
2012 Latest Caselaw 5178 Del

*            HIGH COURT OF DELHI: NEW DELHI

%                                          Judgment Pronounced on: 31.08.2012

+                I.A. No.10268/2009 in CS (OS) No.599/2007

           MVF 3 APS & ORS                                    ..... Plaintiffs
                         Through            Mr. Sudhir Chandra, Sr. Adv. with
                                            Mr. Pravin Anand, Ms. Binny Kalra,
                                            Ms. Tusha Malhotra &
                                            Mr. Aditya Gupta, Advs.

                        Versus


           MR. M. SIVASAMY AND ORS                 ..... Defendants
                         Through Mr. C.A. Sundaram, Sr. Adv. with
                                 Mr. Chinmoy Pradip Sharma &
                                 Mr. Sayam Ray, Adv. for D-4 to 8.
                                 Ms. Shiva Luxmi, Mr Yogesh and
                                 Mr Zafar Inayat, Advs. for D-1, 3
                                 & 5.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs filed a suit to restrain infringement of copyright, breach of confidentiality, damages, delivery up etc.

2. The plaintiffs claim :

(a) that they are the exclusive owners of the trade secrets and confidential information along with copyright in the data base, recepies and the other test data which result in a product

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.1 of 22 "FENCE", which is an insecticidal netting (disease control textiles) used in agriculture to surround livestock or crops.

(b) that the mosquito nets are made from polyester and polyethylene and that the production of yarn and manufacture involves a two step process in which master batch recepies are first formed and later mixed with pre-determined number of pure PE pallets and extrusion process of such mixture, through a nozzle of appropriate size, to produce yarn.

(c) that they have developed this product „FENCE‟ in September, 2001 and first sale of the product was claimed in mid 2003 and have developed two other products ZEROFLY (developed in 1996 and sold for the first time in 2001) and PE BED NET (developed in 2001, presently not in sale).

3. PLAINTIFFS' CASE AGAINST THE DEFENDANTS

i) that the defendants No.4 and 5 were the employees of plaintiff No.1 being the Sales Manager and Chief of Production of the plaintiff No.1. These employees left the employment of the plaintiff No.1 and incorporated a company M/s Intection A/S (Danish Intection) in Denmark which was declared bankrupt on 30th January, 2006. They illegally took away the confidential information and trade secrets, proprietary data, etc. of the plaintiffs with respect to its products including the product „FENCE‟ and formed Danish Intection.

ii) that since the suits were filed against this company in Denmark, the defendants No.4 to 6 shifted operations to Great Britain and

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.2 of 22 the companies defendants No.7 to 10 were formed to further the purpose of Danish Intection and the defendants No.4 and 5.

iii) that a company was also incorporated in France which is defendant No.11 and suits were also filed inter alia against this company in France.

iv) the plaintiffs claim that defendants No.1 to 3 in India are now carrying out the operations of manufacture and sale of the disputed products in league with the other defendants. The Local Commissioners were appointed by the learned Single Judge but the defendants refused to cooperate with the Local Commissioners.

v) that in the proceedings in U.K., defendants No.5 and 6 were made to disclose the data of developing and testing of the products through documents, which was however, subject to a confidentiality agreement, so that only the plaintiffs‟ Danish lawyer, one expert and one plaintiffs‟ English lawyer were allowed to see such documents. However, the plaintiffs are not permitted to access such documents which are relevant for the purposes of the suit before the learned Single Judge. The reliance is on the orders of the English Court directing disclosure of various classes of documents.

4. It is claimed by the plaintiffs that defendants No.4, 5 & 6 were/are their ex-employees and consultants who were instrumental at the stage of development of the product in question. After termination of the arrangement with the plaintiffs, the said defendants have in collusion with the other defendants and started to breach the confidentiality to which they

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.3 of 22 were subject in the matter of manufacture and sale of similar products i.e. insecticide incorporated mosquito nets, made of polyethylene.

5. During pendency of the suit, plaintiffs‟ two applications being I.A.Nos.8624-25/2007 were disposed of by the order dated 2nd April, 2009 which were allowed by my esteemed brother Judge. It would be necessary to refer the prayers in these two applications which were allowed by the said order filed by the plaintiffs for discovery and production of the documents filed, under Order XI, Rules 12 & 14 of Code of Civil Procedure, 1908. The relevant prayers in the two applications read as under:-

"I.A. No.8624/07:

11. In light of the following, the plaintiffs pray that it has become imperative for the plaintiffs to have access to the following documents:

(a) Documents inter se the Defendants pertaining to the subject matter of the suit;

(b) Documents pertaining to the manufacture and sale of the impugned Netprotect product;

(c) Documents pertaining to the export or import of the impugned product, whether in the Defendants own names or through any other person or entity including the "ICONLIFE" branded nets sold by Syngenta and as referred to in the letter from Sygenta dated 25th July 2007, which has been filed in the present proceedings.

12. The Plaintiffs humbly pray that this Hon‟ble Court may pass an order:

(a) Directing all the Defendants to make discovery of the documents mentioned in paragraph above, on oath;

(b) Allow the Plaintiffs and their legal advisers in India and in other countries access to the said documents; and

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.4 of 22 this Hon‟ble Court may pass any other order as it deems fit in the facts and circumstances of the case."

I.A. No.8625/07:

"12. In light of the foregoing, the Plaintiffs submit that is necessary for the Plaintiffs and their legal advisers to have access to the following documents:

(a) All documents served by the Defendants to the English proceedings on 2nd March 2007 pursuant to the Order of Kitchin J dated 11th January 2007. A copy of the order dated 11th January 2007 is annexed herewith as Annexure A;

(b) The Defence of the Defendants to the English proceedings dated 4th May 2007 including all schedules thereto designated confidential or otherwise;

(c) The Plaintiffs Confidential Further Information of Particulars of Claim served by the Plaintiffs on the Defendants in English proceedings on 21st May 2007 pursuant to the Order of Blackburne J dated 20th April 2007. The order dated 20th April 2007 is annexed herewith as Annexure B.

PRAYER

13. The Plaintiffs pray that this Hon‟ble Court may be pleased to pass an order:

(a) Directing the Defendants to the suit to make discovery on oath of the documents enumerated in paragraph 12 above; and

(b) Allow the Plaintiffs‟ external legal advisers in India to have access to the documents sought and to discuss the contents of these documents with the Plaintiffs‟ legal advisers in other jurisdiction; and And this Hon‟ble Court may pass any other order as it deems fit in the facts and circumstances of the case."

6. The said order passed by the learned Single Judge was challenged by the defendants before the Division Bench in three appeals, being FAO(OS) No.206/2009 by defendant No.1; FAO(OS) No.207/2009 by defendants

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.5 of 22 No.4,5,6,7,8,10 & 11; and FAO(OS) No.211/2009 by defendant No.3. These appeals were disposed of on 7th August, 2009 by the Division Bench.

7. The Division Bench has directed to discovery of the documents, vide order dated 7th August, 2009, in the manner provided in sub-para of paragraph 18 of the order. The same reads as under:-

"Thus, the documents of the defendants pertaining to the production of its product and the details with respect thereto including the manufacturing process, contents and other confidential information including the copyrights which defendants may have in data base etc. are no doubt relevant and material to the matters in controversy at this stage of deciding the injunction application but the most important aspect is that what if the claim of the defendants is true that their product is different than that of the plaintiffs and if the plaintiffs have access to such confidential information then great prejudice and irreparable injury will be caused to the defendants because their confidential information will stand known to the plaintiffs who are their competitors. In the English Courts, the counsel for the parties agreed that production of the relevant material and documents was subject to a confidentiality agreement, a „confidential club‟ of certain persons if the same may be so called, because only the lawyers of the plaintiff and expert of the plaintiff were (who were subject to confidentiality agreement), allowed to look at such documents. We may note that the Learned Single Judge has also directed production of documents in this regard only in a sealed cover. However, no purpose will be served merely by filing the same in the Court because such exercise will be of no effect because to ascertain whether such documents contain the exclusive proprietary information of the defendants or the same are only a copy of the confidential information of the plaintiffs, is a vexed question, and the Learned Single Judge may not be equipped to compare and contrast the technical proprietary information relating to the two products and decide on his own whether the two products are the same and whether the defendants product is the copy of the plaintiffs‟ product or

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.6 of 22 that the defendant‟s product is different than that of the plaintiffs‟. It is, therefore, necessary to decide first the complete procedure for ensuring that the confidentiality which the defendants claim in their product is kept, before directing production of such documents, whether in the Court in a sealed cover or before any competent authority or person who would examine the confidential information, in order to determine the respective claims and contentions of either parties. The Court will necessarily have to devise a detailed procedure before directing production of the documents in a sealed cover because, as already stated, filing of documents in the Court in a sealed cover will serve no purpose unless and until a further procedure is devised with respect to the comparison and analysis of the confidential information of both the parties and as to an issue of „confidentiality club‟ with its requirements including constitution, which is to be first decided by the Learned Single Judge."

8. The Division Bench set aside the order of the learned Single Judge to the extent as stated in para 18 of the order. The requisite paras 19 & 20 of the order are also reproduced here below for the purpose of convenience:-

"19. As regards the other prayer in this regard made by the plaintiff i.e. the prayer clause (c) of para 12 of I.A. 8625/2007, documents which are plaintiffs confidential information of particulars of claim served by the plaintiffs on the defendants in the English proceedings on 21.05.2007 pursuant to the order of Blackburne J. dated 20.04.2007, surely, the information and the documents which the plaintiffs already have cannot be said to be matter of any application under Order 11 Rules 12 and 14 because the documents which are already in the power and possession of the plaintiff cannot be the subject matter of proceedings under Order 11 Rules 12 and 14 CPC and it is only the documents which are exclusively in the power and possession of the defendants and which the plaintiffs do not have can be the subject matter of the proceedings under Order 11 Rules 12 and 14 of the CPC.

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20. In view of the above, we set aside the order of the Learned Single Judge except to the extent as stated in para 18 above. We also direct that the Learned Single Judge before directing the production of the documents of the defendants so far as they pertain to Para 11(b) in I.A. 8624/07 is concerned and para (b) of I.A.8625/07, and as detailed in para 18, the Learned Single Judge may first devise a procedure to ensure as to how the information, documents, data base etc. of which production is sought and which pertain to the product of the defendants that the same can be kept confidential so as to not prejudice the defendants in any manner, besides also further providing how such confidential information of the defendants will be looked into, and by which person, and in what manner and other relevant matters, so as to decide the injunction application of the plaintiffs, considering the fact that vital stakes of the parties are involved. We would, of course, like to clarify that the Learned Single Judge may call for the documents for his personal perusal only if he thinks it so appropriate and if he thinks that he is in a position to arrive at a decision as to the respective proprietary information contained in the respective products of the plaintiffs and the defendants. In such a case, the documents would be again kept back in a sealed cover and returned to the defendants after perusal of the same and subject to such further directions as the Learned Single Judge may deem fit."

9. Prior to disposal of appeal, admittedly, till July, 2009 the Indian Lawyers for the plaintiffs and the defendants were not parties to the Confidentiality Club set up by the UK Court. However, in its judgment dated 26th June, 2009 effected by its order dated 2nd July, 2009, the UK Court noted that it would be necessary in the interest of justice to provide access to the UK Confidential Documents to this Court. In paragraph 11 of its order, it directed the plaintiffs‟ English Solicitors to take steps to lodge the UK Confidential Documents under seal before the Registrar of this

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.8 of 22 Court and to also allow three named legal representatives in India for both the plaintiffs and defendants respectively (plus the Senior Advocates instructed by them) to sign undertakings to join the Confidentiality Club in order to inspect and use the UK Confidential Documents upon the terms of their undertakings if they so wished as follows:-

"Upon provision of Confidentiality Undertakings to the opposing party‟s UK solicitors in the form attached at Schedule 3 hereto (adapted as appropriate for the lawyers for the plaintiffs and defendants in the Indian proceedings), the following shall be allowed to inspect and use information derived from copies of the unredacted judgment and the confidential disclosure documents, reports, witness statements (together with any exhibits to such documents) referred to therein, upon the terms set out in the Confidentiality Undertakings. The documents shall be inspected either (i) at the office of the Registrar of the Delhi High Court, where copies of all such documents will be lodged under seal by the Indian lawyers for the plaintiffs in each of the Indian proceedings such lawyers being accompanied by a member or employee of Field Fisher Waterhouse, the English Solicitors for the claimants in this action, who shall retain custody of such documents until they are so lodged, or (ii) in the presence of the English lawyers in this action for the claimants or the defendants respectively:-

Up to three named legal representatives of the claimants in India from Anand and Anand and the Senior Advocates instructed by them and up to three named members of the legal representatives of the defendants in the first Indian proceedings and three named members of the legal representatives of the defendants in the second Indian proceedings and the Senior Advocates instructed by them."

10. In view of the order passed by the UK Court dated 2nd July, 2009, the following Indian counsels for the plaintiffs as well as the defendants have

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.9 of 22 voluntarily signed the confidentiality undertakings and thereby become members of the Confidentiality Club with access to the UK Confidential Documents upon the terms of the undertakings:-

            (i)       For the Plaintiffs
                          Mr. Pravin Anand
                          Ms. Binny Kalra
                          Ms. Swathi Sukumar
                          Mr. Sudhir Chandra Agrawal, Senior Counsel
            (ii)      For the Defendants
                          Ms. Shiva Lakshmi
                          Ms. Udita Singh
                          Mr. Chinmoy Prasad Sharma
                          Mr. C. Aryama Sundaram, Senior Counsel
                          Dr. K.N. Singh, Senior Counsel

11. In the order dated 7th August, 2009, the Division Bench also directed the learned Single Judge to first devise a procedure to ensure that the information, documents, databases, etc. of which production is sought may be kept confidential before directing the production of the documents of the defendants as ordered. The Division Bench has also noticed the UK Court proceedings while passing the said order where the disclosure of confidential information or information containing trade secrets is involved;

a "Confidentiality Club" is set up. This operates by way of:

(a) an agreement signed between the parties to the proceedings that information which is designated as confidential will only be seen by a limited number of people on each side (usually almost

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.10 of 22 entirely consisting of professional, technical and sometimes foreign legal advisors as is the case herein). All of these people are bound by confidentiality undertakings in relation to the confidential information which is disclosed to them;

(b) the hearings pertaining to or involving perusal of or making submissions on the confidential documents filed by both the parties are conducted in camera with only the members of the Confidentiality Club being present in Court.

12. At this stage, this Court is only concerned with the pending application being I.A.No.10268/2009 and by this order I propose to dispose of the same. The following prayer is made in the application: "(a) permit the plaintiffs‟ UK solicitors from the law firm of Field Fisher Waterhouse LLP to submit the UK Confidential Documents to the Registrar of the Delhi High Court in sealed covers/boxes;

(b) take these confidential documents in sealed covers/boxes on court record;

(c) treat and enforce the undertakings voluntarily submitted by the members of the Confidentiality Club in respect of the UK Confidential Documents under undertakings to this Hon‟ble Court and to also treat them as applying to the Indian Confidential Documents as directed to be filed by the defendants vide the Hon‟ble Division Bench order dated 7 th August, 2009.

(d) order hearings to be conducted in camera when they involve the confidential information and documents filed by the parties, with only the members of the Confidentiality Club identified in Annexure IV being present in Court.

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.11 of 22

(e) direct the learned Registrar to keep the documents in sealed covers and allow access to the confidential documents only to the members of the Confidentiality Club identified in Annexure IV herein and on the terms listed in para 11 above."

13. In the application, a specific statement has been made by the plaintiffs that the plaintiffs have already filed the following documents in sealed cover at the time of institution of the suit:-

(i) Schedule containing an enumeration of the confidential information of the plaintiffs.

(ii) Test results of the Cameroon sample performed by the Danish Technological Institute.

(iii) Test results of the Indian sample performed by RAPRA Technology in the UK.

14. It is stated in the application that the UK Confidential Documents are running into several thousands of pages which require separate, dedicated and secure storage space and the plaintiffs propose to file those documents under sealed cover once an appropriate confidentiality regime has been set up by this Court.

15. In reply filed by the defendants, it is stated that prior to setting up a Confidentiality Club or directing production of such confidential and proprietary documents of the answering defendants, it would be necessary to decide certain preliminary issues and objections because of the reason that if the findings on these issues are arrived in favour of the defendants, then it would not at all be necessary and proper to call for or have recourse to the confidential documents of the defendants. The said issues raised by the defendants in their reply are as under:-

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(a) that this Court has no territorial jurisdiction to maintain the present suit against the defendants who do not reside or carry on business or personally work for gain within the territorial jurisdiction of this Court.

(b) the issue of oral contract between the plaintiffs and defendants as mentioned in para 18 of the plaint be determined, as the factum of existence of such oral agreement is in dispute before this Court. If the said issue regarding existence of such alleged oral contract is decided first as a preliminary issue and the Court finds that no such contract ever existed, the whole exercise of forming a confidential regime would be wholly unnecessary. It is stated in the reply that no harm will occur to the plaintiffs if these preliminary issues be decided before production of confidential documents.

16. It is also stated in the reply that the plaintiffs have abused the process of Court by misusing the proceedings filed in various jurisdictions. They have resorted to fishing and roving inquiries to establish their case which has caused a great prejudice to the business and reputation of the answering defendants. Since the plaintiffs have failed to achieve their main objective, now they are unnecessarily trying to harm the defendants‟ business and reputation. The plaintiffs have failed to produce the defendants‟ „NetProtect‟ sample. The defendants, therefore, apprehend that once such confidential and proprietary documents of the defendants in relation with formulas and manufacturing process of „NetProtect‟, databases are revealed to the plaintiffs under such Confidentiality Club, the defendants are likely to suffer irreparable harm and injury.

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.13 of 22

17. The learned counsel appearing on behalf of the defendants has also referred paragraphs 18 & 19 of the judgment passed by the Division Bench and has argued that an issue of Confidentiality Club with its requirement including constitution which is to be first decided by the Single Judge who may also first devise a procedure to ensure as to how the information, documents, database, etc. of which production is sought and which pertained to the products of the defendants that the same can be kept confidential and as not to prejudice the defendants product.

18. In a way, the plaintiffs have filed the present application to seek implementation of the directions issued by the Division Bench by its order dated 7th August, 2009. Still, the defendants have raised various preliminary issues in the reply. The first issue raised by the defendants is in respect of the territorial jurisdiction. The plaintiffs have invoked the territorial jurisdiction of this Court in terms of para-51 of the plaint which reads as under:-

"51. This Hon‟ble Court has the jurisdiction to try and entertain the present suit under Section 62(2) of the Copyright Act, 1957, as the plaintiffs carry on business within the jurisdiction of this Hon‟ble Court, through the Indian subsidiary company of plaintiff No.1. This Hon‟ble Court also has jurisdiction to entertain the suit under Section 20 of the Code of Civil Procedure, as the agent of the defendants is located within the jurisdiction of this Hon‟ble Court. This Hon‟ble Court also has jurisdiction to try and entertain the present suit under Section 20 of the Code of Civil Procedure, as the masterbatch producer of the defendants is located in Delhi. Further part of the cause of action has arisen within the jurisdiction of this Hon‟ble Court, and hence this Hon‟ble Court has jurisdiction to entertain the present suit under Section 20 of the Code of Civil Procedure."

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19. It is submitted by the plaintiffs that the other defendants to the suit have, by virtue of waiver of an objection as to jurisdiction acquiesced to the jurisdiction of this Court. Prima-facie, it appears to me that while reading para-51 of the plaint, the present application cannot be rejected as the issue of jurisdiction has to be determined at the appropriate stage. Therefore, the said objection of the defendants is rejected.

20. Similar is the position of the other objections raised by the defendants qua oral agreement. The said statement has been made by the plaintiffs in para-18 of the plaint. The veracity of the said statement cannot be gone into at this stage. At present, the scope of prayer made in the application is limited. The said application is to be determined in view of the order passed by the Division Bench which was passed after hearing of the parties in their presence. Thus, many objections raised by the defendants have to be considered at the appropriate stage of the proceeding and are not to be decided while disposing of present application.

21. The defendants have consented to the regime for the expansion of the UK Confidentiality Club to Indian counsel and both the plaintiffs and the defendants subsequently signed undertakings accepting this regime and the terms of the expansion and use of the UK Confidential Documents for the benefit of these proceedings.

22. As regards the other contentions raised by the defendants, it appears from the record that when the suit was first time listed before the Court on 2nd April, 2007 along with the interim application, the Court issued the summons to the defendants and notices in the interim applications. However, in one of the applications, four Local Commissioners were appointed by the Court to visit the premises of the defendants to take the

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.15 of 22 samples of master batches and the product being manufactured by the defendants. They were also directed to make mirror copies of the hard disks of the computers found in the premises of the defendants. The other assignments were also granted to the Local Commissioners; the same are mentioned in the order dated 2nd April, 2007.

23. Later on, it was reported by the Local Commissioners in their respective reports and notice of their reports was taken by the Court in the order dated 15th May, 2007 that the defendants, except defendant No.2, had acted in an extremely highhanded manner and they appeared to have blatantly defied the orders of this Court. The Local Commissioners were also physically manhandled and were not permitted to execute the commission. Considering the fact of the matter, interim order was issued against the defendants from manufacturing or marketing insecticides- impregnated mosquito nets till further orders.

24. The allegations of the plaintiffs against the defendants in the subsequent pleadings were that despite of order of injunction dated 15 th May, 2007 issued against the defendants, the defendants have continued to market and manufacture the insecticides impregnated-mosquito nets. The plaintiffs filed contempt petitions being I.A. No.8622/2007 dated 31 st August, 2007, I.A. No.4544/2008 dated 10th April, 2008 and CCP No.93/2008 dated 29th April, 2008.

25. In the first application being I.A. No.8622/2007 it was urged by the plaintiffs that the defendants are supplying the Netprotect product to Syngenta S.A. for onward sale. Further, on 18 th June, 2007 the plaintiffs addressed a letter to Syngenta S.A. to inform them of the pending litigation between the plaintiffs and the defendants as well as the interim order passed

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.16 of 22 by the Court. The said company replied to the plaintiffs vide letter dated 25th July, 2007 which reveals that the defendants are continuing to manufacture and market insecticide-impregnated nets. It was also mentioned in the application that the defendants have acted in collusion with each other to defeat the purpose of the order of this Court and the defendant No.1 has shifted his operations to Shobika Industries.

26. In the second application under Order XXXIX, Rule 2A CPC being I.A. No.4544/2008, the plaintiffs have referred the marketing presentation released by the defendants in respect of the impugned product, Netprotect. The particulars of the presentation were given in para-5 of the said application which read as under:-

(a) Page 2 of the presentation contains an admission that the marks Intection and Netprotect are owned by BestNet Europe Ltd., Defendant No.8 herein;

(b) Page 3 of the presentation refers to Netprotect as "Polyethylene with incorporated deltamethrin";

(c) Page 4 of the presentation shows that the presentation was prepared and distributed subsequent to the order of injunction, as the presentation refers to events in December, 2007;

(d) Page 5 of the presentation also indicates that the presentation is subsequent to the order of injunction, as it refers to large field studies held in July, September and October, 2007 and that the September 2007 large field study was held in India;

(e) Page 15 of the presentation identifies that the nets are produced in Tamil Nadu, India, presumably by defendant No.1. The same page also identifies that the masterbatches are produced in New Delhi, presumably by defendant No.3.

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.17 of 22

(f) Page 15 also speaks of the production capacity of the defendants throughout 2008. Specific reference is made to a production capacity of 500,000 nets per month in January, 2008, notwithstanding the order of injunction, and an expected increase in production capacity in June, 2008 amounting to 750,000 nets per month rising to a production capacity of 1 million nets per month by December, 2008.

27. The plaintiffs have filed the images of defendants‟ Netprotect product and packaging obtained in Sudan with a product label identifying its production date as August 2007 which post dates the order for injunction. The plaintiffs have also filed the copy of an invoice dated 17 th September, 2007 for the supply of 1,81,000 of the defendants‟ Netprotect products to the United Nations Mission in Sudan under Purchase Order MIS07-1108 and a packing list for the same Purchase Order MIS07-1108 dated 14th September, 2007 from defendant No.8 herein for 28,300 of the defendants‟ Netprotect products to the United Nations Mission in Sudan. The label, packaging, invoice and accompanying packing list expressly identify that the products originate from the defendants and the packing list dated 14th September, 2007, which was almost four months after the date of the order for injunction, identifies Tamil Nadu, India as the origin of the goods. The plaintiffs have also found out that on or about 19 th March, 2008 the defendants signed a distribution contract with Ostergaard Group, a company based in Denmark, authorizing it to supply the defendants Netprotect products all across Africa. Defendants No.4, 5 & 6 herein are all Danish citizens.

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28. In the third application being CCP No.93/2008, the plaintiffs have produced the copy of the website of the defendants No.6 and 11 with the following details:-

"Defendants No.10 and 11 herein, Intelligent Insect Control SARL and Intelligent Insect Control Limited, are headed by Defendant No.6, Mr.Ole Skovmand, and operate a website www.insectcontrol.net, where they advertise the impugned product, Netprotect.

The petitioners are filing a printout of the said website, taken on 21st April 2008, which states "Netprotect represents the latest technological development in the field of insecticide impregnated mosquito nets". Further on, the website states the admitted position that Netprotect is a PE Net. In light of this document alone, the semantic distinction drawn by the Contemnors to avoid the injunction, fails miserably. The Contemnors‟ interchangeable use of the terms "impregnated" and "incorporated" in describing their PE product, Netprotect, is evidence that the distinction is artificial and intended to mislead this Hon‟ble Court.

Further evidence of the defendants interchangeable use of the terms "impregnated" and "incorporated" in describing their PE product, Netprotect, can also be seen from the fact that defendant No.6 is the co-author of a publication entitled "Netprotect, a new generation of long lasting impregnated mosquito net" which the defendants published to coincide with the initial launch of their Netprotect PE product in Cameroon in November 2005. The petitioners have filed a printout of publications in 2005 by The Centre IRD de Montpellier listing this publication which expressly identifies defendant No.6 as its co-author."

29. The above facts have been extracted by this Court from the three applications filed by the plaintiffs against the concerned defendants after passing the interim orders. No doubt, referring these statements made by the plaintiffs in the said applications does not mean that the plaintiffs do

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.19 of 22 not have to prove the same at the time of hearing of the pending applications, but prima-facie, there is sufficient material placed on record and it has become necessary in order to determine the real issue involved in the matter, that the prayer made in the application be allowed in view of the guidelines issued by the Division Bench in the order dated 2 nd August, 2012.

30. Under these circumstances, the present application is allowed. In order to devise a procedure to ensure the confidentiality of the information, documents, database etc. the following directions are passed ordering production of the same :

(a) the plaintiffs‟ UK solicitors from the law firm of FIELD FISHER WATERHOUSE LLP will submit the "UK confidential documents" as defined in paragraph 10(d) of the present application to the Registrar General of this Court in sealed covers/boxes within 8 weeks of this order subject to any constraints imposed upon them by the UK order dated July 02, 2009;

(b) the Registrar General will take the UK confidential documents in sealed covers/boxes on record;

(c) The undertakings voluntarily submitted by the Members of the confidentiality club identified in Annexure IV to the application and those subsequently admitted to it in respect of the UK confidential documents ("the Members") will be applicable to the "Indian Confidential Documents" as defined in Paragraph 10

(a), (b),(c), of the present application;

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(d) whenever these relate to or require any confidential documents to be relied on or quoted from or arguments addressed thereon will be conducted in camera or in Judge's chambers, with only the Members permitted to be present. If necessary, court may take the assistance by appointing an expert/advocate on the subject in order to arrive at a decision;

(e) the Registrar General shall keep the documents in sealed covers under lock and key and allow access to the confidential documents only to the Members on the following terms:  That the undertakings voluntarily signed and provided by the Members shall also be applicable to the Indian Confidential Documents which shall also comply the conditions governing the usage and reference to the UK Confidential Documents, which will be recognized and apply equally to the Indian Confidentiality Documents.

 That the sealed cover documents would be opened by the Court for its own perusal and reference and reseal these.  That the Registrar General of this Court be empowered to de-seal the documents for inspection by Members in his presence, on formal request being made by either party to the Registrar General with simultaneous intimation to the opposite counsel who have the option to remain present for such inspection. The documents shall be resealed thereafter by the Registrar General.

31. The application is disposed of.

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.21 of 22 CS (OS) No.599/2007 List the matter before Registrar General for direction/compliance of this order on 31st October, 2012.

MANMOHAN SINGH, J.

AUGUST 31, 2012/ka

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