Mvf 3 Aps & Ors vs M. Sivasamy And Ors
2013 Latest Caselaw 1497 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Order Pronounced on: April 02, 2013

+                      R.P. No.628/2012 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 Malhtora and Mr.Aditya
                                         Gupta, Advs.

                       versus

       M. SIVASAMY AND ORS                                 ..... Defendants
                    Through              Mr.Arvind K.Nigam, Sr. Adv. with
                                         Ms.Shiva Lakshmi, Adv. for D-1, 3
                                         & 5.
                                         Mr.Arvind K.Nigam, Sr. Adv. with
                                         Mr.Sayan Ray, Adv. for D-4, 6, 7,
                                         & 8.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide the Review Petition No.628/2012 filed by the defendants under Section 114 read with Section 151 CPC seeking review of the order dated 31st August, 2012 passed by this Court in I.A.No.10268/2009.

2. The review petition is opposed by the plaintiffs by urging that no grounds averred in the said petition are available under the provisions of Order XLVII, Rule 1 or Section 114 of the Code of Civil Procedure, 1908. It is also stated that since the documents in question as per the order of the Division Bench dated 7th August, 2009 have been lodged before this Court

as per the terms of the order dated 31st August, 2012, the present petition becomes infructuous.

3. Mr.Arvind K.Nigam, learned Senior counsel appearing on behalf of the review-petitioners/defendants has made his submissions orally and placed on record a chart of the alleged errors occurred in the order dated 31st August, 2012. He raised five points during the course of the arguments for the purpose of review sought by the defendants. First point raised by him while referring para-21 of the said order in which it was recorded that, "the defendants have consented to the regime for the expansion of the U.K. Confidentiality Club." His submission is that the defendants in the U.K. proceedings or the Indian proceedings did not consent to the expansion of the Confidentiality Club, rather the defendants have objected to the expansion of the Confidentiality Club regime, as recorded in the judgment dated 7th August, 2009 passed by the Division Bench, in its reply to the I.A.No.10268/2009.

Mr.Sudhir Chandra, learned Senior counsel appearing on behalf of the plaintiffs has referred the transcript recorded in the order of Hon‟ble Mr. Justice Arnold dated 2nd July, 2009. The said transcript records that:

"i. The UK Defendants expressly agreed in Court to the specific mechanism for the expansion of the confidentiality club into India (at internal pages 8, 9 and 20 of the transcript i.e. at pages 28, 29 and 40 of the documents filed along with the Respondents‟ reply to the present petition); and ii. Indian counsel for the Defendants voluntarily signed the confidentiality undertakings to join the confidentiality club."

In view of the above, it appears that the UK defendants agreed in the Court to the specific mechanism and have also signed the undertakings to

join the said club. Thus, para 21 of the order dated 31st August, 2012 cannot be a subject matter of any review.

4. The second point raised by Mr.Nigam is pertaining to para 11 of the said order, in which it is recorded that, "......where disclosure of confidential information or information containing trade secret is involved, „a confidentiality club‟ is set up, this operates by way of (a) "an agreement signed between the parties to the proceedings...." His submission is that the Confidentiality Club regime in the UK proceedings was set up by the U.K. Court Order and the undertakings were to be signed by the parties, inspite of defendants‟ objections therein. It is clarified that the term „agreement‟ as used in para 11 of the order dated 31st August, 2012 refers to an „agreement‟ to maintain the confidentiality of the information rather than the defendants‟ consent/agreement to setting up of the Confidentiality Club.

In view of the abovementioned clarification, no further orders for review are required to be passed.

5. Third point raised by the defendant‟s counsel is by referring para 25 of the order dated 31st August, 2012. According to him, it is erroneously recorded that, "......the said Company replied vide letter dated 25.7.2007, which reveals that the defendants are continuing to manufacture and market insecticide - impregnated nets......" Mr.Nigam, learned Senior Advocate submits that it is the contention of the defendants that they have never manufactured or sold insecticide impregnated mosquito nets. He also referred the letter dated 25th July, 2012 in this regard. I agree with Mr.Nigam that the letter dated 25th July, 2012 did not contain any admission on the part of the defendants that they have continued to manufacture or sell insecticide impregnated mosquito nets. However, the defendants themselves use the terms "incorporated" and "impregnated" interchangeably. The

documents in this regard have also been filed on record. The finding of para 25 of the said order is accordingly clarified. However, it is also a matter of record that the question whether the defendants have manufactured or sold insecticide impregnated mosquito nets cannot be the subject of the present review petition.

6. The next fourth point raised by Mr.Nigam is that in para 4 of the said order, it is erroneously recorded that, "......in the matter of manufacture and sale of similar products i.e. insecticide mosquito nets made of polyethylene." The contention of the defendants is that they were not in the business of manufacture and sale of similar products as that of the plaintiffs herein. Learned Senior counsel has also referred para 7 of the plaint in this regard. It is a matter of fact that para 4 of the order dated 31 st August, 2012 merely records the contentions of the plaintiffs and does not decide anything on merits of the case. In case, paras 4 to 11 of the plaint are read together, it appears that the suit has been filed by the plaintiffs against the defendants for violation of confidential information (trade secrets) and copyright vested in their databases and recipes of manufacturing polyethylene ("PE") products. The prayer paragraphs of the plaint make it more clear that the relief is sought by the plaintiffs against the misuse of their confidential information and copyright which has been filed as Confidential Annexure B in the present proceedings. Thus, the said finding recorded by the Court in para 4 of the order dated 31st August, 2012 is merely on the basis of the averments made in various paras of the plaint including the prayer clause and no review in this regard is required.

7. The last submission of the defendants is that it is incorrectly noted in the order dated 31st August, 2012 that the suit being barred by resjudicata has rendered infructuous. The submission of the learned Senior counsel

appearing on behalf of the defendants is that as to whether setting up of the Confidentiality Regime is necessary at all or not when the UK Courts have rendered their judgments on the same relief, substantially and directly the same issue in question and the parties are also being the same, thus, the nature of documents and necessity of forming the Confidentiality Club did not arise.

8. I have considered the submissions of both the parties carefully. I am of the view that the issue of resjudicata or the suit having become infructuous in view of the UK Appeal Court‟s judgment pronounced on 20 th April, 2011, the said issue is not the subject matter of the present review petition. The defendants are at liberty to move the appropriate application before the roster Bench raising the abovementioned plea of resjudicata as well as the suit being infructuous. The said plea of the defendants would have to be decided as per its own merits, as to whether in the strength of the UK Appeal Court‟s judgment which has been pronounced on 20 th April, 2011, any benefit can be derived by the defendants or not, by the roster Bench. It is always open to the defendants to move an appropriate application in this regard. The said issue cannot be decided in the present review petition. It is accordingly clarified.

9. In view of the reasons mentioned above, the review petition is disposed of. No costs.

CS(OS) No.599/2007 List the matter before the Roster Bench on 10th May, 2013 for directions.

(MANMOHAN SINGH) JUDGE APRIL 2, 2013/ka