Transformative Learning Solutions Pvt. Ltd. v. Pawajot Kaur Baweja

of the plaintiffs. In addition, relief of recovery of damages is also claimed.

2. It is inter alia the case of the plaintiffs that the defendants no.1&2 are the former employees of the plaintiff and have set-up business in the name of the defendant no.3.

3. The suit came up first before this Court on 25^thApril, 2018, when the counsel for the plaintiffs stated that plaint is required to be amended and sought adjournment. Post amendment of the plaint, the suit came up on 11^th May, 2018 when the counsel for the plaintiffs stated that the confidential information of the plaintiffs was filed before this Court in a Pen Drive. The suit was entertained and summons thereof ordered to be issued and vide ex parte ad interim order, till further orders, the defendants were restrained from in any manner using any confidential information of the plaintiffs which the defendants no.1&2 had been privy to or had access to during their employment with the plaintiffs.

4. The defendants appeared and filed their written statement.

5. On 30^thOctober, 2018 when the suit came up before this Court, it was the contention of the counsel for the defendant no.2 that the controversy in the present suit was covered by Navigators Logistics Ltd. Vs. Kashif th Qureshi 2018 SCC OnLine Del 11321. Thereafter on 11 March, 2019, the counsel for the plaintiffs contended that the facts of the present case were

different from that of Navigators Logistics Ltd. However what was argued

by the counsel for the plaintiffs on that date was not found to be the pleaded

case of the plaintiffs. Further, not finding anything on record spelling out

what was the confidential information from use whereof the defendants were

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sought to be restrained, it was enquired so from the counsel for the plaintiffs. The counsel for the plaintiffs contended that the said information was confidential and could not be disclosed. Attention of the counsel for the plaintiffs was then invited to Rule 17 Chapter VII of the Delhi High Court (Original Side) Rules, 2018 providing for constitution of a Confidentiality Club and a Confidentiality Club with the defendants no.1&2 and their counsels as members thereof was constituted and the plaintiffs directed to supply the documents detailing the confidential information, from use whereof defendants were sought to be restrained, in a sealed cover to the counsels for defendants no.1&2 and the members of the Confidentiality Club were directed to file affidavits qua confidentiality.

6. The plaintiffs however, instead of supplying the documents detailing the confidential information in a sealed cover to the counsels for the defendants no.1&2, filed this Review Petition seeking review of the order dated 11^thMarch, 2019 to the extent constituting the Confidentiality Club. The said application came up before this Court on 27^thMarch, 2019, when inter alia following order was passed;

"4. The senior counsel for the plaintiffs/review applicants has contended that as per Rule 17 of Chapter VII and Annexure-F of the Delhi High Court (Original Sides) Rules, 2018, no copies of the confidential documents are required to be taken and only the advocates can be members thereof and the opposite party or any of its employees/officers cannot be members of the confidentiality club. Attention in this regard is particularly drawn to Clause (b) of Annexure-F aforesaid.

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5. However Rule 17 of Chapter VII does not so restrict the membership of the confidentiality club and in my opinion Clause (b) of Annexure-F also cannot be read as excluding the opposite party or its officers/employees. Moreover, I have enquired from the senior counsel for the plaintiffs/review applicants, how inspection of the documents with respect to which confidentiality is claimed by the advocate only of the opposite party can serve the purpose inasmuch as the advocate would necessarily be required to take instructions and cannot act in his own right. If the advocate, after inspection of the documents is to take instructions from the client, even if it is held to be possible, obtaining such instructions would necessarily require the advocate to disclose the contents or nature of the documents to the client and which could also be in breach of the affidavit of confidentiality filed by such advocate.

6. The senior counsel for the plaintiffs/review applicants refers to the Telefonaktiebolaget LM Ericsson (Publ) Vs. Xiaomi Technology 2017 SCC OnLine Del 11069 particularly to para 4 thereof.

7. In my prima facie, view the reasoning which follows from the aforesaid judgment is that there can be exclusion of opposite parties and/or its officers and employees depending upon the facts of the case.

8. It is thus deemed appropriate that the defendants whose counsels appear on advance notice, file reply to this application.

and the matter adjourned to today.

7. The senior counsel for the plaintiffs, the counsel for defendants no.1 and 3 and the counsel for the defendant no.2 have been further heard.

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8. The senior counsel for the plaintiffs has argued that, if the defendants are also made privy to the list of customers of the plaintiffs, it will cause further damage to the plaintiffs, inasmuch as the defendants would then become aware of even those customers of the plaintiffs of whom they do not know till now.

9. On enquiry, whether not the same is an admission of the defendants, till now being not aware of the list of customers of the plaintiffs and / or at least not the entire list, striking at the very root of the suit, the senior counsel for the plaintiffs has contended that an independent person can examine the list of customers of the plaintiffs as well as the list of customers of the defendants to determine the commonality, if any.

10. There is no list of customers of the defendants as yet and no application even for discovery thereof has been filed yet. This argument at this stage is of no avail.

11. The senior counsel for the plaintiffs has also referred to the pages 26 and 100 of Volume-V of Part-IIIA file but which documents are not found to be relevant for the present purpose.

12. On enquiry as to how the list of customers of the plaintiffs is prepared, for the plaintiffs to claim a copyright therein, though the senior counsel for the plaintiffs has drawn attention to paragraphs 6,10,14 and 43 of the plaint but the same are not found to be describing the methodology of preparation of list of customers. The senior counsel for the plaintiffs has sought to give a note in this respect but the need to go into the same also, for the purpose of this review, is not felt. Moreover, a 'note' handed across the bar, cannot be a substitute for pleadings.

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13. The senior counsel for the plaintiffs has else today also referred to Annexure-F to the Delhi High Court (Original Side) Rules, 2018 prescribing the 'Protocol of Confidentiality Club' and on the basis of Clause (b) thereof contended that the defendants cannot be members of the Confidentiality Club. It is argued that only the advocates and external experts can be members of the Confidentiality Club.

14. I have enquired from the senior counsel for the plaintiffs, whether not without even knowing what the confidential information is, from use whereof the defendants are sought to be restrained, the injunction cannot be enforced, inasmuch as a person can be restrained from doing a thing what he knows he has been so restrained from doing and not from doing what he does not know he is restrained from doing.

15. The senior counsel for the plaintiffs today also relies on

Telefonaktiebolaget LM Ericsson (PUBL) Vs. Xiaomi Technology 2017 SCC OnLine Del 11069 to contend that therein the Confidentiality Club was constituted only of advocates and experts.

16. However what was done in Telefonaktiebolaget LM Ericsson (PUBL) supra would not apply to the present factual scenario inasmuch as in the present suit the defendants are sought to be restrained from using information claimed by the plaintiffs to be proprietary and confidential, without specifying the information and for the defendants to be so restrained, it is essential for them to know specifically.

17. The counsel for the defendant no.2 has contended that what was done in Telefonaktiebolaget LM Ericsson (PUBL) supra, was is in view of Section 103 of the Patents Act, 1970, as also reasoned therein and which is

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not applicable here. It is argued that that was a suit for permanent injunction restraining infringement of patent and for ancillary reliefs and one of the issues therein was, whether the plaintiff had offered the defendant a licence on fair, reasonable and non discriminatory (FRAND) terms and in proof whereof the plaintiff had produced patent licensing agreements entered into with others, with respect whereto confidentiality was claimed. It is further argued, that only the rate at which licence was granted was to be seen and for which purpose the need for defendant to see the licence agreement was not seen. The counsel for defendant no.2 has also drawn attention to Rule 17 of Chapter-VII of the Delhi High Court (Original Side) Rules aforesaid, to contend that the same provides for constitution of the Confidentiality Club, 'as may be deemed appropriate in the facts of the case' and Annexure-F is only 'illustrative', as also stated in Rule 17. He thus contends that considering the nature of the dispute in the present suit, the contention, that the defendants cannot be members of the Confidentiality Club, ought not be accepted.

18. The counsel for the defendant no.1 and 3 has also drawn attention to the orders dated 25^thApril, 2018 and 11^thMay, 2018 in this suit and has contended that the ex parte ad-interim injunction, on 11^thMay, 2018 was with reference to the confidential information stated to be contained in the Pen Drive but which confidential information has not been disclosed to the defendants and the order is liable to be vacated. It is also argued that the reluctance of the plaintiffs to disclose their customer list, is an admission, of the defendants having no knowledge thereof. It is argued that the plaintiffs are indulging in a fishing and roving enquiry.

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19. The senior counsel for plaintiffs on enquiry, under instructions states that the Pen Drive referred to in order dated 11^thMay, 2018, contains only the list of customers of plaintiffs and no other confidential information.

20. I have considered the respective contentions.

21. A civil lis, governed by the CPC, requires each party thereto to have notice of the case of other, which is required to be met and the CPC does not permit any surprises. The trial and adjudication of a civil lis is regulated by pleadings and evidence, documentaries or otherwise, beyond pleadings is not permitted. The documents of each other are required to be admitted and/or denied and issues on which adjudication is required to be done, struck. No evidence, even if led, beyond pleadings is permitted to be led. Thus, the proceedings require complete disclosure.

22. Of late however, in respect of a certain class of suits, it was felt that documents filed should not be permitted to go in public domain, as happens on filing in the Court. Provision has thus been made for keeping such documents in a sealed cover, for eyes only of a limited number of persons who also agree / undertake not to divulge contents thereof to others. In some cases, as in cases of patent infringement or infringement of copyright in source code of a computer software, the need for a party to a lis to see the document may not arise as the opinion with respect thereto is to be given by the expert only.

23. However in the present suit to restrain defendants from using confidential information of plaintiffs and for ancillary reliefs, the defendants are permitted to defend the suit inter alia on the grounds, that the plaintiffs have no copyright in the customers list and even if the plaintiffs have a

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copyright, the defendants have not infringed the same. I may mention that the suit has been filed as a commercial suit and not as an ordinary suit. This suit, under Section 2(c) of the Commercial Courts Act, 2015, can qualify as a commercial suit only if arising out of intellectual property rights relating to trade marks, copyright, patent, design etc. and not if arising out of property rights or a tort. In such a suit, to ask the defendants to contest the suit without knowing the customers list in which copyright is claimed and without knowing what they are sought to be restrained from doing, would not only be unfair to the defendants but also would be contrary to procedure prescribed by law. The Advocates of defendants and experts, even if any possible in such scenario, cannot be expected to make pleadings, to meet the case of plaintiffs. The non disclosure to the defendant sought by the plaintiffs, in my opinion deprives the defendant of opportunity of being heard and the right to defend the suit.

24. As far as Telefonaktiebolaget LM Ericsson (PUBL) supra is concerned, the counsel for defendant no.2 is correct in his contention that Annexure-F supra is only illustrative and else there is no absolute bar to a party / litigant being a member of a Confidentiality Club. This is also clear from bare language of Rule 17 of Chapter VII supra. Moreover, here, it is the pleaded case of plaintiffs that defendants are privy to the customers list of the plaintiffs. In such circumstances, the reluctance of the plaintiffs is inexplicable and intended only to have a walkover and obtain an absolute but vague order / decree of injunction against defendants, to stop the defendants from competing with the plaintiffs. This is impermissible in law.

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25. I have thus enquired from the senior counsel for the plaintiffs, whether the plaintiffs are willing to share the customers list with respect whereto only confidentiality is claimed, with the defendants, binding the defendants to confidentiality terms, as they have already been.

26. The senior counsel for the plaintiffs, on instructions states that the plaintiffs do not want to share their customers list with the defendants.

27. Consequently, the review petition is disposed of by, though recalling the order dated 11^thMarch, 2019 insofar as constituting the Confidentiality Club, but recording that the legal consequences of the refusal of the plaintiffs shall follow at whatever stage applicable.

28. Review petition is disposed of.

CS(COMM) No.817/2018

List for further consideration on 27^thNovember, 2019.

RAJIV SAHAI ENDLAW, J.

JULY 17, 2019

'gsr/pp'..

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