Bombay High Court
Vinod Gurbux Motwani Ex-Director Sun ... vs Asset Reconstruction Company (India) ... on 11 March, 2021
Author: G.S. Patel
Bench: G.S. Patel
1-IAL101-2021 IN COMIPL92-2021.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 101 OF 2021
IN
COMMERCIAL IP SUIT (L) NO. 92 OF 2021
CG Power & Industrial Solutions Ltd ...Plaintif
Versus
Deepak Kumar Yadav & Ors ...Defendants
And
Union of India ...Respondent
Mr Venkatesh Dhond,Senior Advocate, with Hiren Kamod, Ms Smriti Yadav, Shwetank Tripathi & Bhavik Shukla, i/b Khaitan & Co, for the Plaintiff Mr Ashish Kamat, i/b Tejas S Mahamuni, for Defendants Nosf 1 and Atul G. 2f Kulkarni Mr Rashmin Khandekar, i/b Tejas S Mahamuni, for Defendants Nos Digitally signed 3 &4f by Atul G. Kulkarni Dr Virendra Tulzapurkar, Senior Advocate, with Tejas Gokhale, Date: 2021.03.12 11:02:25 +0530 Rugved More, & Indrajeet Hingane, i/b Akhil Mahesh, for Defendant Nof 5f Mr TJ Pandian, with TC Subramanian, for Union of India-Railwaysf CORAM: G.S. PATEL, J DATED: 11th March 2021 PC:-
Page 1 of 1011th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC
1. The hearing of this Interim Application has commenced only after Afdavits have been fled up to the stage of Sur-Rejoinder. Mr Dhond is for the Plaintif. Mr Kamat appears for Defendants Nos. 1 and 2. Mr Khandekar appears for Defendants Nos. 3 and 4 and Dr Tulzapurkar appears for Defendant No. 5. Mr Pandian appears for the Railways which has been joined as a party to the Interim Application, though not a party to the Suit. The reasons for this joinder are mentioned in prayer (g) of the Interim Application. No immediate reliefs are sought against the Railways although prayer
(g) is worded as a mandatory injunction. Whether or not the Plaintif is entitled to this will depend on the fnal outcome of the Interim Application.
2. The allegation is one of alleged infringement of certain copyright-protected or industrial drawings in relation to a tender issued by the Railways. The Plaintif claims that its copyright-
protected drawings were illicitly used by the Defendant No. 5, which was provided with these drawings by Defendants Nos. 1 to 4, all erstwhile employees of the Plaintif.
3. The Afdavit in Reply in paragraphs 4t to 53 say this:
"4t. It is stated that as per the tender process set out herein above, after receipt of said purchase order, Defendant No. 5 was required to submit its detailed technical proposal, ratings, measurements etc. of various components and sub-components used in procuring the traction engine and electrics. Accordingly, on 04 May 2020, Defendant No. 5 submitted its technical proposal to DMW. The said technical proposal was prepared by employees of the company inter alia including Mr Abhishek Singh, Mr Page 2 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC Sachin Joshi, Mr Deepak Yadav (Defendant No. 1), Mr Amit Borwal (Defendant No. 2), Shailesh Saxena (Defendant No. 3) and Laukush Tiwari (Defendant No. 4) of Defendant No. 5 along with a team of other engineers employed by Defendant No. 5 and was in accordance with the ICF Specifcations. The said technical proposal difers from the technical details in which Plaintif claims rights, on various counts, Certain technical parameters with respect to Traction Motor and Traction Alternator which were similar to that of the Plaintif were largely due to the requirement of ICF Specifcations or due to industrial standards. Tables in this regard have already been annexed at Exhibit F and Exhibit G hereinabove. The Defendant is ready and willing to provide the said technical proposal to this Hon'ble Court in a sealed envelope, as review of the same would clearly demonstrate that the Defendant No. 5 has prepared its proposal on the basis of the tender requirements. A copy of the technical proposal dated 04 May 2020 is annexed hereto and marked as Exhibit L.
50. It is stated that as part of the technical proposal, Defendant No. 5 also submitted outline drawings of Overall General Arrangement (OGA), Internal General Arrangement (IGA), Isometric View (ISO), Circuit Arrangement etc. for various parts of the Control Panel such as Motor Switch Group, Drivers Desk, Control Cubicle and Resistor Panel. These drawings were prepared by Mr Abhishek Singh- and Mr Sachin joshi and their team on the basis of (I) the drawings of general layout and mounting arrangement for Drivers Cabin as per IREPS website and (ii) the study of Control Panel during the aforesaid visits of employees of Defendant No. 5 at Store Depot-I of DMW situated at Patiala, Punjab. Further, the Defendant is ready and willing to provide the said drawings to this Hon'ble Court in a sealed envelope, as review of the same would clearly demonstrate that the Defendant No. 5 Page 3 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC has submitted and is using drawings completely original and dissimilar, from a copyright perspective, to the drawings in which Plaintif claims copyright.
51. As per clause 1.4 of said ICF Specifcations, the entire technical proposal shall be approved by RDSO. Therefore, on 16 July 2017, the DMW forwarded the technical proposal to RDSO for its approval. A copy of the technical proposal dated 16 July 2017 is annexed hereto and marked as Exhibit M.
52. On 27 November 2020, Defendant No. 5 replied to queries of DMW/RDSO with respect to its technical proposal and also submitted drawings of 33 (thirty-three) components / sub-components and/or assemblies of components / sub-components of Traction motors. These 33 drawings are prepared by Defendant No. 1 to 4. The said drawings inter alia included the drawings for sub- components of Traction motor viz. Armature Fan and Brush Holder Assembly. The drawings of these two sub- components are prepared are also prepared by 1 to 4 and those are diferent from what is sought to be compared by the Plaintif as the drawings in respect of Armature Fan (item ii) and Brush Holder Assembly (item iii) in paragraph 22(a) of the Plaint. This also lends complete credence to the Defendant's case that the drawings that were received from market sources which Defendant No. 5 used to evaluate costing were only intended to be used, and in fact used for such purpose. Else, there would be similarity between the said drawings and the drawings ultimately submitted by Defendant No. 5 in this regard. The Defendant is ready and willing to provide the aforesaid drawings of Armature Fan and Brush Holder Assembly to this Hon'ble Court in a sealed envelope, as review of the same would clearly demonstrate that the Defendant No.5 has submitted and is using drawings completely original and dissimilar, from a Page 4 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC copyright perspective, to the drawings in which Plaintif claims copyright. A copy of the reply dated 27 November 2020 is annexed hereto and marked as Exhibit N.
53. Further, with respect to certain sub-components of Traction Motors such as Commutator Bar (item iv), Commutator Endring (item v), Insulating Sleeve (item vi), Insulation Segment (item vii), Insulation Vee Ring (item
viii), Defendant No. 5 has, in its proposal clearly, stated that instead of procuring these sub-components separately, it will be collecting an assembly thereof, termed as Commutator Assembly will be procured from railway approved source. Therefore, there is no question of copying as alleged or at all. The Defendant is ready and willing to provide the aforesaid drawing Commutator Assembly to this Hon'ble Court in a sealed envelope, as review of the same would clearly demonstrate that the Defendant No. 5 has submitted and is using drawings completely original and dissimilar, from a copyright perspective, to the drawings in which Plaintif claims copyright."
4. Paragraph 24 of the Sur-Rejoinder at page 801 of the Interim Application reads thus:
"24. Defendant No. 5, engaged Chartered Engineer Mr Anant Bagade, a technical expert in order to analyse the drawings and technical specifcations/parameters of Defendant No. 5 vis-a-vis the Plaintif (referred to and relied upon by the Plaintif ). The said Chartered Engineer observed signifcant diferences between the drawings of the Defendant No. 5 and Plaintif with respect to (I) Control Panel [Motor Switch Group, Resistor Panel, Control Cubical 1 & 2 and Drivers Desk 1 & 2]; (ii) Armature Fan; (iii) Brush Holder Assembly. The said Chartered Engineer also observed signifcant diferences Page 5 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC between the technical specifcations/parameters of the Defendant No. 5 and Plaintif with respect to Traction Alternator and Traction Motor. The said technical expert has categorically observed that the similarities in the drawings of Control Panel as well as in the technical specifcations are due to factors such as (i) Accommodating the product in the defled space available; (ii) Standardization and similarity for ease of operation of the coach operator; (iii) Product abided by customer specifcations; (iv) Standardization of overall working of the devices and equipments; (v) General requirements of ergonomics and standard lay-out as per customer requirement; (vi) Technical requirements as specifed by the customer. Also, the said technical expert has categorically observed that the similarities in the drawings of Armature Fan and Brush Holder Assembly are owing to the stated requirements of motor as mentioned in 'Point No. 3.11.1' as per ICF specifcation number ICF/MD/SPEC/300. REV.00, CS-02). Hereto annexed and marked as Exhibit K is a copy of report of Mr Anant Bagade, Chartered Engineer. The drawings of Armature Fan and Brush Holder Assembly of the Defendant No. 5 are not annexed with Exhibit K. The Defendant No. 5 is ready and willing to provide the drawings of Armature Fan and Brush Holder Assembly to this Hon'ble Court in a sealed envelope."
5. Equally, in paragraph 12 at pages 8 to 10 of the plaint, the Plaintif have said this:
"12. The Plaintif submits that the complete activity starting with participation in tender process, bagging the contract, planning the project, creation and development of design, manufacturing and testing, installation of various equipment, commissioning of the vehicle, carrying out feld Page 6 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC trials and obtaining completion certifcates for closure is a very time and resource extensive process for which the Plaintif has invested substantial labour and capital. The Plaintif further submits that in manufacture, working and production of the said Products for DETC US application, incorporating the said Drawings and the said Literary Works involves highly specialized technology, skilled design engineering, specifc product know-how and trade secrets, the production process and related quality and performance parameters all of which are created by the employees of the Plaintif during the course of their employments and under valid contracts of service investing enormous skill and labour. The technical specifcations of the machines, drawings, sketches, technical know-how of the machinery, research and development data sheet, technical specifcations, concepts etc of the said Products are confdential to the Plaintif and all such specialized technologies, skilled design engineering, specifc product know-how applied at various stages of the said Products for DETC US application viz: design-development- integrations; the production process and related quality and performance parameters, arrangement and re-arrangement of various Specialized Components, activities pertaining to testing and installation of various equipment, feld trials etc. are hereinafter referred to as "said Confdential Information". The said Confdential Information is proprietary to the Plaintif and the Plaintif is the owner of all rights therein. The said Confdential Information is sine qua non for the manufacture and the successful installation of the said Products, in addition to other aspects including the said Drawings and the said Literary Works. The said Confdential Information is made available by the Plaintif to its necessary employees only under a strict obligation of confdentiality. The Plaintif's said Confdential Information is not within the knowledge of the general Page 7 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC public and is unique to the Plaintif. The said Confdential Information is extremely valuable to the Plaintif and in fact, it is because of this said Confdential Information that the Plaintif has an edge over its competitors. The Plaintif says and submits that the said Confdential Information cannot be acquired or duplicated by others due the strict vigilance maintained by the Plaintif before sharing such information. Considering the confdential and sensitive nature of the information, the Plaintif craves leave to fle / deposit the said Confdential Information in a sealed envelope for the perusal of this Hon'ble Court. The Plaintif submits that the said Confdential Information is most important for manufacturing, installing and successful working of the said Products. For the sake of brevity, the said Drawings, the said Literary Works, the improvements thereto made by the Plaintif from time to time and the said Confdential Information owned by the Plaintif in relation to the said Products for DETC US application are hereinafter collectively referred to as the "said Intellectual Property Rights". The Plaintif craves leave to refer to and rely upon the said Intellectual Property Rights created by the Plaintif for its DETC US application over the years, when produced."
6. Now these items, all sought to be placed in sealed cover for rival purposes, are not among those that are privileged from disclosure within the meaning of the Evidence Act. The submission on either side to place such material only before the Court and not disclose it to the other side, renders the decision-making process very nearly impossible. I do not see how I can legitimately reference material shown only to me by one side to the exclusion of other side. As a general rule, anything that a party wishes to rely on and show to the Court, it must be prepared to show to the other side. Having Page 8 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC said that, this does not necessarily mean that the material must form part of a public record. Such a disclosure can always be subjected to certain limitations in the common interest of both sides to prevent further damage. This can be achieved in a way that the contestants know the material the other side relies on, and are yet shielded from any public -- and therefore potentially damaging -- exposure of that material. The fact that I and the two sides need to see the material does not always mean that the world at large needs to see it.
7. I am not asking either side to disclose anything beyond what each side has said it is prepared to put in a sealed cover. The material that the Plaintif claims is confdential and which it is willing to put in a sealed cover as stated in paragraph 12 will be disclosed to the Court and will be disclosed, though not on Afdavit, to all fve Defendants. Similarly, the material that the Defendant No. 5 has said it is willing to disclose to the Court in a sealed cover in paragraphs 4t to 53 of the Afdavit in Reply and paragraph 24 of the Sur-Rejoinder must be disclosed to the Advocates for the Plaintif. A set of each disclosure must be kept ready for the Court.
8. These disclosures on either side are subjected now, by virtue of this order, to the following restrictions:
(a) The disclosures are not to be fled in the Registry and are not to be placed on Afdavit;
(b) One entire set of disclosures will be kept available for the Court. Each side will make its disclosure to the Advocates of the other side. Those Advocates will Page 9 of 10 11th March 2021 1-IAL101-2021 IN COMIPL92-2021.DOC retain a copy for themselves for the purposes of hearing of this Interim Application and their respective clients will be consulted for instructions on those disclosures;
but copies are not to be given to the litigants of these disclosures;
(c) Both sides are put to notice that depending on the outcome of the Interim Application, the copies that are so disclosed will either be directed to be returned, or sealed with the Registry until the fnal disposal of the Suit, or agreed to be destroyed, as the case may be.
9. Mr Dhond for the Plaintif and Dr Tulzapurkar for Defendant No. 5 say the necessary disclosures will be made on or before 15th March 2021 in appropriate compilations. Both sides will then require some time to re-arm themselves.
10. List the matter on 18th and 1tth March 2021 at 2.30 pm
11. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 10 of 10 11th March 2021