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2020 Supreme(Del) 492
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
Genentech Inc And Others - Plaintiffs
Versus
Drugs Controller General of India And Others - Defendants
CS(OS) 3284 of 2015
Decided On : 02-03-2020
For the Plaintiffs : Mr. Darpan Wadhwa, Sr. Adv. with Ms. Niti Dixit, Ms. Samiksha Godiyal, Mr. N. Mahavir, Mr. Aubert Sebastian & Mr. Aditya, Advs.
For the Defendant : Mr. C.M. Lall, Sr. Adv. with Ms. Bitika Sharma, Ms. Namrita Kochhar, Ms. Nancy Roy & Mr. Luv Virmani, Advs. for D-3 Mr. Kamil Khan, Adv. (Local Commissioner)
The main legal point established is that the inspection of confidential documents should include an internal expert to enable the party seeking inspection to amend their pleadings if required.
Headnote:
I.A. 2790/2020 - Inspection of Documents - Section 151 CPC - [Section 103 of the Patent Act, Rule 17 of the Delhi High Court (Original Side) Rules, 2018] - The court discussed the formation of a Confidentiality Club and the access to confidential documents. It interpreted the rules and legal provisions to determine whether an internal expert could be part of the Confidentiality Club and concluded that the inspection should include an internal expert to enable the plaintiffs to amend their pleadings if required.
Fact of the Case:
The defendant filed an application seeking modification of an earlier order to include an independent expert from the plaintiff's side for the inspection of documents.
Finding of the Court:
The court found that the inspection should include an internal expert to enable the plaintiffs to amend their pleadings if required.
Issues: The main issue was whether the Confidentiality Club should only include an external expert and not an internal expert.
Ratio Decidendi: The court interpreted the order dated April 25, 2016, and concluded that the inspection should include an internal expert to enable the plaintiffs to amend their pleadings if required.
Final Decision: The application filed by the defendant was dismissed, and the inspection was directed to be carried out by the parties from a specified date onwards.
JUDGMENT :
V. KAMESWAR RAO, J.
I.A. 2790/2020 (by defendant No.3 under Section 151 CPC)
1. By this order, I shall decide the instant application filed by the defendant No.3 (for short ‘applicant’) with the following prayers:-
“In light of the aforesaid facts and circumstances and in the interest of justice, it is most respectfully prayed that this Hon'ble Court may be pleased to:
(a) Direct the Plaintiffs to supply the credentials/details of an independent expert for the purpose of inspection in terms of order dated April 25, 2016 and February 12, 2020;
(b) Pass such other and/or further order/s and/or direction/s as may be deemed fit and proper in the facts and circumstances of the present case.”
2. In substance, the prayer of the applicant in the application is that the inspection to be carried out of the applicant’s documents in terms of orders dated April 25, 2016 and February 12, 2020 should be, by an independent expert on behalf of plaintiffs.
3. Suffice would it be to state that on an application being IA 25289/2015 of the applicant for filing certain documents in a sealed cover, this Court passed an order dated April 25, 2016. The relevant paras of the order for the purpose of this application are primarily paras 226, 227 and 228. In para 227, this Court had noted the decision of this Court in an earlier suit being CS(OS) 355/2014. Further, this Court in order dated February 12, 2020, went on to hold as under:-
“2. From the perusal of para 135 of an order passed in earlier suit by this Court, this Court allowed the inspection of the documents by two advocates and expert from the plaintiffs’ side in the presence of two advocates from the defendants’ side.
3. Today it is suggested by the learned Senior Counsels for the parties that a Local Commissioner be appointed before whom the two advocates and expert from the plaintiffs’ side can inspect the documents.
4. Accordingly, this Court appoints Mr. Kamil Khan, Advocate (Mob. No.9899218810), who is present in court as a Local Commissioner before whom the two advocates and expert from the plaintiffs’ side shall inspect the documents, when two advocates from the defendants’ side shall also be present. The documents shall be produced by the staff of the Registry in a sealed cover for inspection. After inspection is over on a given date, the documents shall be re-sealed. This process shall be followed on every day of inspection. For carrying out the commission the Local Commissioner shall be paid an amount of Rs.25,000/- per day to be shared equally by the parties.”
4. Subsequent thereto, when the suit was listed before the learned Joint Registrar on February 17, 2020, the learned counsel for the plaintiffs had given the details of two Advocates and one expert, who shall be inspecting the documents on behalf of the plaintiffs. The name of the expert being Dr. Samir Sagitrao. The issue, which has been raised by the applicant in the present application is with regard to the presence of Dr. Samir Sagitrao, as an expert of the plaintiffs by contending that Dr. Samir Sagitrao is an internal / in-house representative of the plaintiff No.2 Company. It is the case of the applicant and so contended by Mr. Chander Lall, learned Senior Counsel that it is established precedent that confidentiality clubs are constituted with a view to ensure that the sanctity and confidentiality of business and commercially sensitive information / material filed by a party is maintained. According to him, the presence of Dr. Samir Sagitrao would defeat the very said purpose in the present case.
5. Mr. Lall laid stress on the fact that the documents to be inspected contain confidential information and test data generated by the applicant relating to the main clinical and pre-clinical tests of its biosimilar drug to Trastuzumab. The said data is confidential and was generated for the purpose of the Drugs Authority to analyze and approve it and the said data is confidential qua any other competitor including the plainti
