HINDUSTAN COMPOSITES LIMITED Vs. JASBIR SINGH RANDHAWA

JUDGEMENT

(1.) THE petitioner has presented this petition invoking the powers of this Court under Article 215 of the Constitution of India, the Contempt of Courts Act, 1971 and section 151 r/w Order XXXIX of the Civil Procedure Code.

(2.) THE facts that are relevant and material for deciding this petition are as follows :-

(3.) THE petition is contested by the respondents. The respondent No. 1 in his affidavit in reply states as under :-With respect to the order of injunction in terms of prayer (b), the respondent No. 2 has nowhere been restrained from applying or using a manufacturing process which is not a trade secret, or a manufacturing process and/or information of secret or confidential nature concerning the business of the plaintiff or any of its associates. Thus clearly the order of injunction operating against the respondents No. 2 does not preclude manufacture by the respondent using a method, which may be the same or similar to that used by the petitioner, if such process is not a secret process or a trade secret belonging to the petitioner. It is relevant to mention that at the time of passing the order dated 8-12-1998 confirming the injunction, the report of Dr. Kale was before the Honble Court. However, this Court was not pleased to restrain the respondent No. 2 to continue to manufacture in absolute terms. This Court vide order dated 8-12-1998 confirmed the injunction in terms of prayers (a) and (b) as above, which are both clearly and strictly confined to the divulging or use of a secret process. In fact the Court has clearly held vide the said order dated 8-12-1998 that the issue as to whether the process of manufacture utilised by the defendants was in fact a secret or confidential process of the plaintiff need not be gone into at that stage. Whatsoever be the reasons set out in the various orders of this Court, the interim reliefs granted were expressly confined to prayers (a) and (b) of the Notice of Motion, and were never expanded beyond those prayers notwithstanding the clear case of the defendants that they are not using any secret process of manufacture belonging exclusively to the plaintiffs. This clearly implies that the respondent No. 2 was not injuncted absolutely from continuing to manufacture and was only restricted from manufacturing by a secret process of the petitioner. Thus, the injunction can only be said to be breached if there is a process belonging exclusively to the plaintiffs, which is established by them to be a secret process. In the context of the present contempt petition, the respondent No. 1 submits that the secrecy of the process has necessarily to be proved by the petitioner before any allegation of contempt can be sustained. The respondent No. 1 respectfully submits that in contempt jurisdiction this issue can not be deducted by inference or supposition or logical deduction, but has to be directly and expressly proved, as it could lead to the incarceration of innocent people. Even the expert has admitted that the manufacturing process utilised by the petitioner is available in literature. Therefore, it is clear that there is nothing secret about the said manufacturing process. The expert Dr. Kale has in fact clearly stated that his opinion is restricted/limited to whether the manufacturing process utilised by the defendants and the plaintiffs is the same. In fact Dr. Kale has not even opined on whether the formulatious utilised by the plaintiff are secret or confidential in nature, or even whether the said process belongs exclusively to the plaintiff, as is clear from the report where he states that "the plaintiffs have given full details of formulations used by them in wet and dry mix process. Since, the defendants have not submitted the details of their formulations, I am unable to comment on this particular aspect". Thus he has not even given a mandate on whether the specific formulations utilised by the plaintiff are confidential in nature and exclusive to them. No interim relief has been granted to the petitioner, which restrains the respondent from utilising a manufacturing process which may be same or similar to that used by the petitioner, unless it is proved that the said process is a trade secret and is confidential in nature and protected as the exclusive property of the plaintiff. The order dated 24-12-1996 provided a procedure to determine whether or not the process used by the petitioner and the respondent No. 2 was the same, viz. an expert was to be appointed from among the three names each to be suggested by the petitioner and the respondent No. 2. The said order further provided that in the event that the process of manufacture was held to be the same, the injunction would have operated and the respondent No. 2 would be held to be in contempt of the said order. Thereafter, the respondent No. 2 filed Appeal No. 26 of 1997 in the present suit impugning the said order dated 24-12-1996. One of the principal grounds of appeal was that the process of manufacture used by the petitioner was not secret and hence the petitioner could not seek any reliefs in respect of a process in which they had no proprietary rights of any kind whatsoever. By an order dated 5th February, 1997, Their Lordships Dr. B. P. Saraf and P. D. Upasani, JJ. , inter alia clarified the order dated 24-12-1996 as meaning that the said order of Justice Variava envisaged the appointment of an expert also for the purpose of ascertaining whether or not the process of manufacture used by the petitioner was secret. In fact the order of the Honble Appeal Court states :