Mvf 3 Aps & Ors vs Mr. M. Sivasamy and Ors on 31 August, 2012

Delhi High CourtMvf 3 Aps & Ors vs Mr. M. Sivasamy And Ors on 31 August, 2012Author: Manmohan Singh* 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 confidentialinformation along with copyright in the data base, recepies and the other test datawhich result in a product I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.1 of22 "FENCE", which is an insecticidal netting (disease control textiles) used inagriculture to surround livestock or crops.

(b) that the mosquito nets are made from polyester and polyethyleneand that the production of yarn and manufacture involves a two stepprocess in which master batch recepies are first formed and latermixed with pre-determined number of pure PE pallets and extrusionprocess of such mixture, through a nozzle of appropriate size, toproduce yarn.

Mvf 3 Aps & Ors vs Mr. M. Sivasamy And Ors on 31 August, 2012

Indian Kanoon - http://indiankanoon.org/doc/125311034/ 1

(c) that they have developed this product FENCE in September, 2001and first sale of the product was claimed in mid 2003 and havedeveloped two other products ZEROFLY (developed in 1996 and soldfor 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 SalesManager and Chief of Production of the plaintiff No.1. These employees left theemployment 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, proprietarydata, etc. of the plaintiffs with respect to its products including the product FENCEand formed Danish Intection.

ii) that since the suits were filed against this company in Denmark, the defendantsNo.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 tofurther 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 andsuits 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 theoperations of manufacture and sale of the disputed products in league with the otherdefendants. The Local Commissioners were appointed by the learned Single Judgebut 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 thedata of developing and testing of the products through documents, which washowever, subject to a confidentiality agreement, so that only the plaintiffs Danishlawyer, one expert and one plaintiffs English lawyer were allowed to see suchdocuments. However, the plaintiffs are not permitted to access such documentswhich are relevant for the purposes of the suit before the learned Single Judge. Thereliance is on the orders of the English Court directing disclosure of various classes ofdocuments.

4. It is claimed by the plaintiffs that defendants No.4, 5 & 6 were/are theirex-employees and consultants who were instrumental at the stage of development ofthe product in question. After termination of the arrangement with the plaintiffs, thesaid defendants have in collusion with the other defendants and started to breach theconfidentiality to which they I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.3of 22 were subject in the matter of manufacture and sale of similar products i.e.



insecticide incorporated mosquito nets, made of polyethylene.

5 . D u r i n g p e n d e n c y o f t h e s u i t , p l a i n t i f f s t w o a p p l i c a t i o n s b e i n gI.A.Nos.8624-25/2007 were disposed of by the order dated 2nd April, 2009 whichwere allowed by my esteemed brother Judge. It would be necessary to refer theprayers in these two applications which were allowed by the said order filed by theplaintiffs for discovery and production of the documents filed, under Order XI, Rules12 & 14 of Code of Civil Procedure, 1908. The relevant prayers in the two applicationsread as under:-

"I.A. No.8624/07:

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

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

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

(c) Documents pertaining to the export or import of the impugnedproduct, whether in the Defendants own names or through any otherperson or entity including the "ICONLIFE" branded nets sold bySyngenta and as referred to in the letter from Sygenta dated 25th July2007, which has been filed in the present proceedings.

12. The Plaintiffs humbly pray that this Honble Court may pass anorder:

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

(b) Allow the Plaintiffs and their legal advisers in India and in other countries accessto the said documents; and I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.4of 22 this Honble Court may pass any other order as it deems fit in the facts andcircumstances of the case."

I.A. No.8625/07:

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



(a) All documents served by the Defendants to the English proceedings on 2nd March2007 pursuant to the Order of Kitchin J dated 11th January 2007. A copy of the orderdated 11th January 2007 is annexed herewith as Annexure A;

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

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

PRAYER

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

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

(b) Allow the Plaintiffs external legal advisers in India to have access to thedocuments sought and to discuss the contents of these documents with the Plaintiffslegal advisers in other jurisdiction; and And this Honble Court may pass any otherorder 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 thedefendants before the Division Bench in three appeals, being FAO(OS) No.206/2009by defendant No.1; FAO(OS) No.207/2009 by defendants I.A. No.10268/2009 inCS(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 dated7th 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 productionof its product and the details with respect thereto including themanufacturing process, contents and other confidential informationincluding the copyrights which defendants may have in data base etc.are no doubt relevant and material to the matters in controversy atthis stage of deciding the injunction application but the mostimportant aspect is that what if the claim of the defendants is true thattheir product is different than that of the plaintiffs and if the plaintiffshave access to such confidential information then great prejudice and



irreparable injury will be caused to the defendants because theirconfidential information will stand known to the plaintiffs who aretheir competitors. In the English Courts, the counsel for the partiesagreed that production of the relevant material and documents wassubject to a confidentiality agreement, a confidential club of certainpersons if the same may be so called, because only the lawyers of theplaintiff and expert of the plaintiff were (who were subject toconfidentiality agreement), allowed to look at such documents. Wemay note that the Learned Single Judge has also directed productionof documents in this regard only in a sealed cover. However, nopurpose will be served merely by filing the same in the Court becausesuch exercise will be of no effect because to ascertain whether suchdocuments contain the exclusive proprietary information of thedefendants or the same are only a copy of the confidential informationof the plaintiffs, is a vexed question, and the Learned Single Judgemay not be equipped to compare and contrast the technicalproprietary information relating to the two products and decide on hisown whether the two products are the same and whether thedefendants 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 thedefendants product is different than that of the plaintiffs. It is,therefore, necessary to decide first the complete procedure forensuring that the confidentiality which the defendants claim in theirproduct is kept, before directing production of such documents,whether in the Court in a sealed cover or before any competentauthority or person who would examine the confidential information,in order to determine the respective claims and contentions of eitherparties. The Court will necessarily have to devise a detailed procedurebefore directing production of the documents in a sealed coverbecause, as already stated, filing of documents in the Court in a sealedcover will serve no purpose unless and until a further procedure isdevised with respect to the comparison and analysis of the confidentialinformation of both the parties and as to an issue of confidentialityclub with its requirements including constitution, which is to be firstdecided by the Learned Single Judge."

8. The Division Bench set aside the order of the learned Single Judge to the extent asstated in para 18 of the order. The requisite paras 19 & 20 of the order are alsoreproduced 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 whichare plaintiffs confidential information of particulars of claim served bythe 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 alreadyhave cannot be said to be matter of any application under Order 11Rules 12 and 14 because the documents which are already in the powerand possession of the plaintiff cannot be the subject matter ofproceedings under Order 11 Rules 12 and 14 CPC and it is only thedocuments which are exclusively in the power and possession of thedefendants and which the plaintiffs do not have can be the subjectmatter of the proceedings under Order 11 Rules 12 and 14 of the CPC.

I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.7 of 22

20. In view of the above, we set aside the order of the Learned Single Judge except tothe extent as stated in para 18 above. We also direct that the Learned Single Judgebefore directing the production of the documents of the defendants so far as theypertain to Para 11(b) in I.A. 8624/07 is concerned and para (b) of I.A.8625/07, and asdetailed in para 18, the Learned Single Judge may first devise a procedure to ensureas to how the information, documents, data base etc. of which production is soughtand which pertain to the product of the defendants that the same can be keptconfidential so as to not prejudice the defendants in any manner, besides also furtherproviding 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 decidethe injunction application of the plaintiffs, considering the fact that vital stakes of theparties are involved. We would, of course, like to clarify that the Learned SingleJudge may call for the documents for his personal perusal only if he thinks it soappropriate and if he thinks that he is in a position to arrive at a decision as to therespective proprietary information contained in the respective products of theplaintiffs and the defendants. In such a case, the documents would be again kept backin a sealed cover and returned to the defendants after perusal of the same and subjectto 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 theplaintiffs and the defendants were not parties to the Confidentiality Club set up bythe UK Court. However, in its judgment dated 26th June, 2009 effected by its orderdated 2nd July, 2009, the UK Court noted that it would be necessary in the interest ofjustice to provide access to the UK Confidential Documents to this Court. Inparagraph 11 of its order, it directed the plaintiffs English Solicitors to take steps tolodge 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 allowthree named legal representatives in India for both the plaintiffs and defendantsrespectively (plus the Senior Advocates instructed by them) to sign undertakings tojoin the Confidentiality Club in order to inspect and use the UK ConfidentialDocuments upon the terms of their undertakings if they so wished as follows:-



"Upon provision of Confidentiality Undertakings to the opposingpartys UK solicitors in the form attached at Schedule 3 hereto(adapted as appropriate for the lawyers for the plaintiffs anddefendants in the Indian proceedings), the following shall be allowedto inspect and use information derived from copies of the unredactedjudgment and the confidential disclosure documents, reports, witnessstatements (together with any exhibits to such documents) referred totherein, upon the terms set out in the Confidentiality Undertakings.The documents shall be inspected either (i) at the office of theRegistrar of the Delhi High Court, where copies of all such documentswill be lodged under seal by the Indian lawyers for the plaintiffs ineach of the Indian proceedings such lawyers being accompanied by amember or employee of Field Fisher Waterhouse, the EnglishSolicitors for the claimants in this action, who shall retain custody ofsuch documents until they are so lodged, or (ii) in the presence of theEnglish lawyers in this action for the claimants or the defendantsrespectively:-

Up to three named legal representatives of the claimants in India fromAnand and Anand and the Senior Advocates instructed by them andup to three named members of the legal representatives of thedefendants in the first Indian proceedings and three named membersof the legal representatives of the defendants in the second Indianproceedings and the Senior Advocates instructed by them."

10. In view of the order passed by the UK Court dated 2nd July, 2009, the followingIndian counsels for the plaintiffs as well as the defendants have I.A. No.10268/2009in CS(OS) No.599/2007 Page No.9 of 22 voluntarily signed the confidentialityundertakings and thereby become members of the Confidentiality Club with access tothe 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 learnedSingle Judge to first devise a procedure to ensure that the information, documents,



databases, etc. of which production is sought may be kept confidential beforedirecting the production of the documents of the defendants as ordered. The DivisionBench has also noticed the UK Court proceedings while passing the said order wherethe disclosure of confidential information or information containing trade secrets isinvolved;

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

(a) an agreement signed between the parties to the proceedings that informationwhich is designated as confidential will only be seen by a limited number of people oneach side (usually almost I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.10 of22 entirely consisting of professional, technical and sometimes foreign legal advisorsas is the case herein). All of these people are bound by confidentiality undertakings inrelation to the confidential information which is disclosed to them;

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

12. At this s tage, this Court is only concerned with the pending appl icat ion beingI.A.No.10268/2009 and by this order I propose to dispose of the same. The following prayer is madein the application: "(a) permit the plaintiffs UK solicitors from the law firm of Field FisherWaterhouse LLP to submit the UK Confidential Documents to the Registrar of the Delhi High Courtin 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 ConfidentialityClub in respect of the UK Confidential Documents under undertakings to this Honble Court and toalso treat them as applying to the Indian Confidential Documents as directed to be filed by thedefendants vide the Honble Division Bench order dated 7 th August, 2009.

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


(e) direct the learned Registrar to keep the documents in sealed covers and allow access to theconfidential documents only to the members of the Confidentiality Club identified in Annexure IVherein 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 havealready 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 theplaintiffs.

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

(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 severalthousands of pages which require separate, dedicated and secure storage space and the plaintiffspropose to file those documents under sealed cover once an appropriate confidentiality regime hasbeen set up by this Court.

15. In reply filed by the defendants, it is stated that prior to setting up a Confidentiality Club ordirecting production of such confidential and proprietary documents of the answering defendants, itwould be necessary to decide certain preliminary issues and objections because of the reason that ifthe findings on these issues are arrived in favour of the defendants, then it would not at all benecessary 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:-


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

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

16. It is also stated in the reply that the plaintiffs have abused the process of Court by misusing theproceedings filed in various jurisdictions. They have resorted to fishing and roving inquiries toestablish their case which has caused a great prejudice to the business and reputation of theanswering defendants. Since the plaintiffs have failed to achieve their main objective, now they areunnecessarily trying to harm the defendants business and reputation. The plaintiffs have failed toproduce the defendants NetProtect sample. The defendants, therefore, apprehend that once suchconfidential and proprietary documents of the defendants in relation with formulas andmanufacturing process of NetProtect, databases are revealed to the plaintiffs under suchConfidentiality Club, the defendants are likely to suffer irreparable harm and injury.




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

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

"51. This Honble Court has the jurisdiction to try and entertain the present suit underSection 62(2) of the Copyright Act, 1957, as the plaintiffs carry on business within thejurisdiction of this Honble Court, through the Indian subsidiary company of plaintiffNo.1. This Honble Court also has jurisdiction to entertain the suit under Section 20 ofthe Code of Civil Procedure, as the agent of the defendants is located within thejurisdiction of this Honble Court. This Honble Court also has jurisdiction to try andentertain the present suit under Section 20 of the Code of Civil Procedure, as themasterbatch producer of the defendants is located in Delhi. Further part of the causeof action has arisen within the jurisdiction of this Honble Court, and hence thisHonble Court has jurisdiction to entertain the present suit under Section 20 of theCode of Civil Procedure."


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

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



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

22. As regards the other contentions raised by the defendants, it appears from the record that whenthe 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 thepremises of the defendants to take the I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.15 of22 samples of master batches and the product being manufactured by the defendants. They werealso directed to make mirror copies of the hard disks of the computers found in the premises of thedefendants. The other assignments were also granted to the Local Commissioners; the same arementioned in the order dated 2nd April, 2007.

23. Later on, it was reported by the Local Commissioners in their respective reports and notice oftheir reports was taken by the Court in the order dated 15th May, 2007 that the defendants, exceptdefendant No.2, had acted in an extremely highhanded manner and they appeared to have blatantlydefied the orders of this Court. The Local Commissioners were also physically manhandled and werenot permitted to execute the commission. Considering the fact of the matter, interim order wasissued against the defendants from manufacturing or marketing insecticides- impregnated mosquitonets till further orders.

24. The allegations of the plaintiffs against the defendants in the subsequent pleadings were thatdespite of order of injunction dated 15 th May, 2007 issued against the defendants, the defendantshave continued to market and manufacture the insecticides impregnated-mosquito nets. Theplaintiffs 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 thedefendants are supplying the Netprotect product to Syngenta S.A. for onward sale. Further, on 18 thJune, 2007 the plaintiffs addressed a letter to Syngenta S.A. to inform them of the pending litigationbetween the plaintiffs and the defendants as well as the interim order passed I.A. No.10268/2009 inCS(OS) No.599/2007 Page No.16 of 22 by the Court. The said company replied to the plaintiffs videletter dated 25th July, 2007 which reveals that the defendants are continuing to manufacture andmarket insecticide-impregnated nets. It was also mentioned in the application that the defendantshave acted in collusion with each other to defeat the purpose of the order of this Court and thedefendant 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, theplaintiffs have referred the marketing presentation released by the defendants in respect of theimpugned product, Netprotect. The particulars of the presentation were given in para-5 of the saidapplication which read as under:-



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

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

(c) Page 4 of the presentation shows that the presentation was prepared anddistributed subsequent to the order of injunction, as the presentation refers to eventsin December, 2007;

(d) Page 5 of the presentation also indicates that the presentation is subsequent tothe order of injunction, as it refers to large field studies held in July, September andOctober, 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 themasterbatches are produced in New Delhi, presumably by defendant No.3.


(f) Page 15 also speaks of the production capacity of the defendants throughout 2008. Specificreference 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 permonth by December, 2008.

27. The plaintiffs have filed the images of defendants Netprotect product and packaging obtained inSudan with a product label identifying its production date as August 2007 which post dates theorder 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 NationsMission in Sudan under Purchase Order MIS07-1108 and a packing list for the same Purchase OrderMIS07-1108 dated 14th September, 2007 from defendant No.8 herein for 28,300 of the defendantsNetprotect products to the United Nations Mission in Sudan. The label, packaging, invoice andaccompanying packing list expressly identify that the products originate from the defendants andthe packing list dated 14th September, 2007, which was almost four months after the date of theorder for injunction, identifies Tamil Nadu, India as the origin of the goods. The plaintiffs have alsofound out that on or about 19 th March, 2008 the defendants signed a distribution contract withOstergaard Group, a company based in Denmark, authorizing it to supply the defendants Netprotectproducts all across Africa. Defendants No.4, 5 & 6 herein are all Danish citizens.


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



"Defendants No.10 and 11 herein, Intelligent Insect Control SARL and IntelligentInsect Control Limited, are headed by Defendant No.6, Mr.Ole Skovmand, andoperate a website www.insectcontrol.net, where they advertise the impugnedproduct, 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 fieldof insecticide impregnated mosquito nets". Further on, the website states theadmitted position that Netprotect is a PE Net. In light of this document alone, thesemantic distinction drawn by the Contemnors to avoid the injunction, failsmiserably. The Contemnors interchangeable use of the terms "impregnated" and"incorporated" in describing their PE product, Netprotect, is evidence that thedistinction is artificial and intended to mislead this Honble Court.

Further evidence of the defendants interchangeable use of the terms "impregnated"and "incorporated" in describing their PE product, Netprotect, can also be seen fromthe fact that defendant No.6 is the co-author of a publication entitled "Netprotect, anew generation of long lasting impregnated mosquito net" which the defendantspublished to coincide with the initial launch of their Netprotect PE product inCameroon in November 2005. The petitioners have filed a printout of publications in2005 by The Centre IRD de Montpellier listing this publication which expresslyidentifies defendant No.6 as its co-author."

29. The above facts have been extracted by this Court from the three applications filed by theplaintiffs against the concerned defendants after passing the interim orders. No doubt, referringthese statements made by the plaintiffs in the said applications does not mean that the plaintiffs doI.A. No.10268/2009 in CS(OS) No.599/2007 Page No.19 of 22 not have to prove the same at thetime of hearing of the pending applications, but prima-facie, there is sufficient material placed onrecord and it has become necessary in order to determine the real issue involved in the matter, thatthe prayer made in the application be allowed in view of the guidelines issued by the Division Benchin the order dated 2 nd August, 2012.

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

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

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



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

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


(d) whenever these relate to or require any confidential documents to be relied on or quoted from orarguments addressed thereon will be conducted in camera or in Judge's chambers, with only theMembers permitted to be present. If necessary, court may take the assistance by appointing anexpert/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 allowaccess to the confidential documents only to the Members on the following terms: That theundertakings voluntarily signed and provided by the Members shall also be applicable to the IndianConfidential Documents which shall also comply the conditions governing the usage and referenceto the UK Confidential Documents, which will be recognized and apply equally to the IndianConfidentiality Documents.

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

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 matterbefore Registrar General for direction/compliance of this order on 31st October, 2012.

MANMOHAN SINGH, J.

AUGUST 31, 2012/ka I.A. No.10268/2009 in CS(OS) No.599/2007 Page No.22 of 22


