Micromax Informatics Limited vs Telefonaktiebolget L M Ericsson
2017 Latest Caselaw 6935 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: 04.12.2017

+     FAO(OS) (COMM) 169/2017 & CM No.40001/2017

      MICROMAX INFORMATICS LIMITED ..... Appellant
                  Through: Mr. S. Ganesh, Sr. Adv. with
                  Mr. Ashok K. Aggarwal, Mr. Samrat Nigam,
                  Ms. Radhika, Ms. Snigdha Sharma,
                  Ms. Ritwik Sneha & Mr. Gaurav
                  Priyadarshi, Advs.

                        versus

      TELEFONAKTIEBOLGET L M ERICSSON ..... Respondent
                  Through: Mr. C.S. Vaidyanathan, Sr.
                  Adv., Mr. C.M. Lall, Sr. Adv. with Ms. Saya
                  Choudhary,    Mr.      Ashutosh     Kumar,
                  Mr. Prateek Sehrawat, Mr. Adithya Jayaraj,
                  Mr. Rupin Bahl, Ms. Karunka Kanwar,
                  Mr. Devanshu Khanna & Mr. Ujjwal Sinha,
                  Advs.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE SANJEEV SACHDEVA

      S. RAVINDRA BHAT, J.


      1.    On the previous date of hearing, learned senior counsel
      appearing for the parties were requested to explore the
      possibility of considering use of the "hot tub" procedure,
      devised by Courts abroad, to facilitate appreciation of expert
      technical evidence, in a shortened procedure. The plaintiff's



FAO(OS)(COMM)169/2017                                         Page 1
       counsel was agreeable.      Learned counsel for the appellant
      submitted that in principal there can be no objection to the
      adoption of such procedure. He, however, highlighted certain
      difficulties and stated that the "hot tub" procedure pre-supposes
      the meeting of the concerned experts before the commencement
      of trial with the aim of narrowing the differences, in the form of
      a commonly issued document or separately summarized
      versions of it. Such outcomes would be preceded by candid
      discussion between the experts inter se resulting in the drawing
      up of those documents to assess a faster outcome of the merits
      in a suit. It was submitted that in the present case, on account
      of the appellant's broad acceptance of the idea indicated in the
      order of this Court of 21.04.2017, in FAO(OS)(COMM)
      No.54/2017 and FAO(OS)(COMM) No.89/2017 - also between
      the very same parties to the present appeal, the experts' rival
      positions would already be a matter of record. Learned counsel
      for the plaintiff/respondent submitted that this factual
      circumstance need not, in any manner, be a hindrance for the
      objective consideration of the experts' views. It was submitted
      that discussions would be off the record; however, the outcomes
      would be in the form of a common document or simplified
      statements.

      2.    This Court is of the opinion that the modified "hot tub"
      procedure, given the realities of the present case and the
      progress of the suit, may be suitably devised by the Single




FAO(OS)(COMM)169/2017                                             Page 2
       Judge. This Court proposes to discuss the issue in its judgment,
      in greater detail. The Court would in its final order make
      suitable directions in this regard.

      3.    Learned senior counsel Mr. S. Ganesh, on instructions,
      indicates that the following three broad points/features are
      acceptable to M/s Micromax Infomatics. The three features
      have been crystallized in the form of a note which are extracted
      as follows:-

            "1. This Hon'ble Court in F.A.O. (O.S.) (COMM)
            54/2017 and F.A.O. (O.S.) (COMM) 89/2017, between
            the same parties, passed the following order on
            21.04.2017:

                     "CORAM:
                     HON'BLE MR. JUSTICE S. RAVINDRA BHAT
                     HON'BLE MR. JUSTICE YOGESH KHANNA
                                          ORDER

21.04.2017 "..................................... During the course of hearing the Court suggested to learned counsel for parties that for the purpose of expediting the proceedings, the consolidation of Telefonaktiebolaget L M Ericsson (PUBL) vs. Mercury Electronics & Ors CS (Comm) No.155/2017 with Telefonaktiebolaget L M Ericsson (PUBL) vs. Lava International Ltd CS (Comm) No.1148/2016 may be considered.

As a part of the suggestions, the plaintiff may adopt its evidence led in the previous suit and the defendant/appellant in the later suit i.e. Micromax.

FAO(OS)(COMM)169/2017 Page 3 The Court is of the opinion that plaintiff's evidence in Lava case may be treated as evidence in the suit involved in the present appeal i.e. Micromax with the briefest supplementary evidence and any other such additional / supplementary evidence may be subjected to the cross- examination to prove infringement; and likewise the defendant / Micromax may lead such evidence over and above Lava's case as it deems necessary to address the issue arising out of the defence and counter claim".

In deference of the opinion expressed by this Hon'ble Court in the order dated 21.04.2017, the Appellant/Defendant is agreeable to adopt the evidence in the Lava case as evidence in the instant suit and so also the objections raised therein. Micromax may not be held bound by concessions given by lava.

2. Having regard to the evidence already on record, any other additional / supplementary evidence confined to the pleadings and permitted to the Parties by the Ld. Single Judge may be subjected to the cross-examination.

3. This Hon'ble Court may fix a specific time schedule to be followed by both parties to conclude recording of such additional/supplementary evidence as may be necessary."

4. Learned senior counsel for the plaintiff Mr. C.S. Vaidyanathan submits that the above three points, which would reduce the time duration of the trial, are acceptable to the plaintiff. It is submitted that the consent of M/s Lava International Ltd. would be necessary in this regard, for the adoption of the agreed procedure, indicated by the appellant. It is also submitted that the third party licence agreements relied

FAO(OS)(COMM)169/2017 Page 4 upon by the plaintiff would be supplied, duly redacted, to the appellant's nominees in a confidentiality club.

5. These materials and any other such material which is sought to be brought on record or furnished to the appellant by the plaintiff would be subject to the provisions of the Commercial Courts Act, 2015 and their admissibility under the provisions of the Act.

6. It is clarified that such additional evidence, would be a matter of record in the suit between Telefonaktiebolaget L M Ericsson (PUBL) and Lava International Ltd. [CS (COMM) No.1148/2016]. The parties agree that the following rules would govern the confidentiality club in the ongoing suit:-

"(i) All confidential license agreements relating to similarly placed parties be permitted to be filed in a sealed cover and be kept in the safe custody of the Registrar General;

(ii) Each party be directed to provide on an affidavit, a list of no more than four lawyers (who are not and have not been in-house lawyers of one of the parties) and no more than two external expert witnesses, who alone will be entitled to see the aforesaid confidential documents/patent license agreements;

(iii) Said lawyers and expert witnesses will be bound by confidentiality orders passed by this Hon'ble Court and will not make copies or disclose the contents of the said aforesaid confidential documents/patent

FAO(OS)(COMM)169/2017 Page 5 license agreements to anyone else or anywhere else, including in other legal proceedings, oral and written communications to the press, blog publications etc., so that the spirit of the confidentiality regime would be preserved;

(iv) The parties i.e. the Plaintiff and the Defendant No.2 will be allowed to inspect said patent license agreements only through the confidentiality club members & no copies will be made of such confidential documents/license agreements. After the inspection, the aforesaid confidential documents / patent license agreements be resealed and again deposited with the Ld. Registrar General of this Hon'ble Court;

(v) Direct that during recordal of evidence w.r.t.

aforesaid confidential documents / patent license agreements etc. only members of the confidentiality club shall be present;

(vi) The proceedings of this Hon'ble Court, when the said documents are being looked at, would be in camera to the effect that only members of the confidentiality club be permitted to be present.

(vii) The Plaintiff would give copies of the aforesaid confidential documents / patent license agreements to the members of the confidential club only after redacting the confidential information including the name of the parties. However, the rates will not be redacted.

FAO(OS)(COMM)169/2017 Page 6

(viii) Any evidence by way of affidavit / witness statement which may contain aforesaid confidential information / terms of the agreement(s) shall be kept in a sealed cover and would only be accessible to the members of confidentiality club. However, a party filing such evidence by way of affidavit would give to the opposite party a copy of such affidavit after redacting the confidential information / terms of the agreement(s);"

7. Parties have concluded their submissions with respect to the merits of FAO(OS)(COMM) No.169/2017.

8. Order reserved.

9. All rights and contentions of the parties are reserved.

10. Interim order shall continue until further orders.

                                      S. RAVINDRA BHAT, J



                                      SANJEEV SACHDEVA, J
      DECEMBER 04, 2017
      kks




FAO(OS)(COMM)169/2017                                             Page 7