Sungro Seeds Ltd v. Sk Tripathi & Ors

judgment.

¶21The Legislature however while enacting the PPVFR Act, perhaps to fill up the aforesaid lacuna in the Patents Act, empowered the Registrar of Plant Varieties vide Sub-Section (5) of Section 24 of the PPVFR Act, to issue any directions to protect the interest of a breeder against any abusive act committed by any third party during the period between filing of application for registration and decision taken by the Registrar on such application. I may also notice that per Section 24(2) of the PPVFR Act, the maximum time within which the Registrar of Plant Varieties is to decide the application for registration, from the date of filing of the application, is to be prescribed by the Rules thereunder and vide Section 24(3) of the PPVFR Act, such time is to be not later than twelve months from the date of application, if the applicant is in default and thereafter the application for registration is to be treated as abandoned. In spite of so limiting the time taken in registration, it was deemed fit by the legislature to, vide Section 24(5) of the PPVFR Act, empower the Registrar of Plant Varieties to protect rights of a breeder in the interregnum.

¶22The senior counsel for the defendant no.3 contended, (i) that PPVFR Act is a complete code in itself; (ii) that there is no common law right in a

new plant variety; (iii) PPVFR Act creates rights against infringement, only on grant of registration; (iv) PPVFR Act does not vest any rights in the breeder prior to registration; (v) that it being the plea of the plaintiff that, the defendants no.1&2 had stolen the parent line of SCFH-130 and had given it to the defendant no.3, and that 'Riya' of the defendant no.3 being identical to 'Katreena', of the plaintiff, both cannot be registered and which question is pending consideration before the Registrar of Plant Varieties and against whose order provision has been made in PPVFR Act for an appeal to Plant Varieties Protection Appellate Tribunal; (vi) for the period prior to registration also, power has been vested in the Registrar of Plant Varieties, vide Section 24(5), to grant the relief as has been claimed by the plaintiff in this suit; and, (vii) the PPVFR Act expressly bars the jurisdiction of this Court in respect of any matter which the PPVFR Authority or the Registrar of Plant Varieties or the Plant Varieties Protection Appellate Tribunal is empowered by or under the Act to determine; reference is particularly made to Sections 89 and 24(5).

¶23The senior counsel for the defendant no.3, during the hearing also referred to (i) Dhulabhai Vs. State of M.P. AIR 1969 SC 78, (ii) Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam 2011 (47) PTC 494 (Del); and handed over copies of (iii) Mohan Lal Vs. Sona Paint (2013) 200 DLT 322 (FB); and, (iv) Maharashtra Hybrid Seeds Co. Ltd. Vs. Union of India

(2012) 191 DLT 129.

¶24Per contra the senior counsel for the plaintiff contended that the plaintiff has sued on breach of contract and confidentiality by the defendants

no.1 &2, without invoking the PPVFR Act and is in the suit not claiming or asserting any rights under the PPVFR Act.

¶25The senior counsel for the defendants responded that such a claim would lie against the defendants no.1&2 only and not against the defendant no.3.

¶26It was further the contention of the senior counsel for the plaintiff that neither the PPVFR Authority nor Plant Variety Registrar nor Plant Varieties Protection Appellate Tribunal have the jurisdiction to decide the issues as raised in this suit, of breach of contract. Reliance was placed on:

(i) The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay (1976) 1 SCC 496 where it was held that (a) if a dispute is not an industrial dispute nor does it relate to enforcement of any right under the Industrial Disputes Act, 1947, the remedy lies only in the Civil Court; (b) if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted; (c) only if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act;

(ii) Abhinav Gupta Vs. JCB India Ltd. 2010 (119) DRJ 397 (DB) where it was held that if a particular relief or cause of action is barred under the Information Technology Act, 2000, it would

not mean that the plaint as a whole has to be rejected inasmuch as the plaint contains various causes of action and reliefs and if on trial it emerges that certain relief can be granted only under the Information Technology Act, then such relief may be denied and the suit may be dismissed to that extent but at the preliminary stage when issues even had not been framed, the plaint could not be rejected;

(iii) Dhulabhai supra, laying down that the jurisdiction of the Civil Court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law and that where a liability was existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either of the two remedies;

(iv) The Mumbai Kamagar Sabha Bombay VS. M/s. Abdulbhai Faizullabhai AIR 1976 SC 1455 where, finding that though the Payment of Bonus Act, 1965 speaks as a whole code on the subject of profit-based bonus but is silent on other distinct and different kinds of bonus such as the one oriented by custom, it was held that the Bonus Act could not annihilate by implication such different kinds of bonus;

(v) Zee Tele.films Ltd. Vs. Sundial Communications Pvt. Ltd. 2003 (27) PTC 457 (Bom) (DB) holding that an obligation of confidence may exist where there is no contractual relationship and that it is in public interest that confidences should be respected;

(vi) P. Asokan Vs. Western India Plywoods Ltd. Cannanore AIR 1987 Kerala 103 (FB) where a suit against the employer for compensation for injuries sustained by employer's negligence was held maintainable as the claim was not based on any provision of the Employees' State Insurance Act, 1948;

(vii) Indian Express Newspapers (Bombay) Pvt. Ltd. Vs. T.M. Nagarajan (1988) 15 DRJ 212 holding Section 18 of the Trade Unions Act, 1926 to be not a bar to the jurisdiction of a Civil Court to grant injunction against strikes, demonstration and picketing etc. by workers;

(viii) Belganda Sahakari Sakhar Karkhana Ltd. Vs. Keshav Rajaram Patil 1994 SCC OnLine Bom 317 holding that Section 91(1) of the Maharashtra Co-operative Societies Act, 1960 was not a bar to a jurisdiction of a Civil Court to entertain a dispute arising between society and a member about a matter which does not arise out of the provisions contained in the Act and that the Act was only intended to consolidate and amend the law relating to Co-operative Societies and not for the purpose of regulating all the transactions;

(ix) Raja Ram Kumar Bhargava Vs. Union of India (1988) 1 SCC 681 holding that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality having been intended to the result of the statutory proceeding, in the absence of an exclusionary provision, the civil courts' jurisdiction is impliedly barred; however if a right pre-existing in common-law is recognised by the statute and a new statutory remedy for its enforcement, without express exclusion of the civil courts' jurisdiction does not bar the civil court from entertaining the dispute; and,

(x) Dwarka Prasad Agarwal Vs. Ramesh Chandra Agarwala AIR 2003 SC 2696 to contend that bar of jurisdiction of Civil Court is not to be readily inferred.

¶27During the hearing, it was felt that the relief seeking which the suit had been filed was within the domain of Registrar of Plant Varieties in exercise of powers under Section 24(5) of the PPVFR Act and the jurisdiction of this Court thus was barred under Section 89 thereof. It was also felt that since registration as a plant variety has been sought by the defendant no. 3 and because commercial exploitation of the seed in which the plaintiff claims exclusive right is also, by the defendant no.3, the effective relief of injunction claimed in the suit is against defendant no.3 only and on the basis of claim of the plaintiff of breach of contract and breach of trust and confidentiality against the defendants no.1 and 2, would

still not entitle the plaintiff to relief against defendant no.3. It was thus felt that the suit was not entertainable by this Court and the plaint liable to be rejected, at least insofar as against defendant no.3, reliefs sought whereagainst could be obtained by the plaintiff before Registrar of Plant Varieties.

¶28However the Division Bench of this Court in Prabhat Agri Biotech Ltd. Vs. Registrar of Plant Varieties 2016 SCC OnLine Del 6236 was concerned with a challenge to the vires of the said Section 24(5) of the PPVFR Act inter alia on the ground that the same empowered the Registrar to injunct another, even before the applicant for registration had acquired any proprietary rights in the plant variety of which registration was sought. It was the contention therein that it was well nigh possible that the application for registration is ultimately rejected; however the third party would stand restrained in the meanwhile . It was further the contention that Section 24(5) of the PPVFR Act was capable of immeasurable harm and likely injury by a competitor, who by making a mere application for registration and grant of interim measure under Section 24(5), may succeed in destroying a genuinely developed plant variety whose creator or originator might be preparing a claim. Several other arguments were also raised. The Division Bench, vide the judgment aforesaid, found merit in the challenge and has struck down Section 24(5) of the PPVFR Act, so empowering the Registrar of Plant Varieties, inter alia reasoning (i) that the process of registration begins with the submission of an application but the grant of registration or dismissal of the application for registration is after enquiry, as prescribed in the Act; (ii) however the power under Section 24(5) of the PPVFR Act is exercisable at any stage and even at the moment the application is filed, regardless of its

merits i.e. whether the applicant has any right or not; (iii) "unlike in the case of all other species of property rights, real or intellectual, the protection granted is not only wide but in respect of an entirely inchoate claim. In a sense, the assertion by the application is at least inchoate till it was ruled or was a mere claim based upon unverified and unsubstantiated particulars in terms of the Act and the Rules"; (iv) "infringement is a matter to be determined by regular Courts"; and, (v) "given the importance of the Act, there is enormous danger in empowering authorities with unguided and uncanalized power through provisions that can implicate livelihoods and limit or impair food access to tens of thousands-potentially hundreds of thousands of farmers and users of plant variety".

¶29Though an appeal to the Supreme Court against Prabhat Agri Biotech Ltd. supra is pending and there is interim stay of operation of the judgement but with the striking down of Section 24(5) of the PPVFR Act, it appeared that the fulcrum of the argument of the senior counsel for the defendant no.3 to the jurisdiction of this Court to entertain the suit had disappeared and there being no other provision in the PPVFR Act empowering any of the authorities created thereunder to grant relief at the pre-registration stage, this Court would have jurisdiction. With respect to the contention of the senior counsel for defendant no.3, of the exclusive jurisdiction to determine similarity between the seeds of plaintiff and defendant no.3 being of the authorities under the Act, it appeared that this Court may have jurisdiction till the said authorities decided the applications for registration.

¶30However, even if it were to be so, the question which still arises for consideration herein is, whether there can be any rights as a breeder as are

conferred by the PPVFR Act on grant of registration as a variety thereunder, before such registration is granted. While the plaintiff herein claims such rights as common law rights, the defendant no.3 herein controverts the existence of any such rights under the common law.

¶31Though during the hearing what perturbed me was, the commercial exploitation of a plant variety by a person who is not the breeder thereof but who may have come across such variety, before the breeder thereof has obtained registration of the same under the PPVFR Act, and the breeder being remediless till then, but on further consideration find that it is not as if the breeder would be remediless. The breeder, once has been granted registration, in an action for infringement can always claim profits earned by such infringer for the pre-registration period as well.

¶32Else, the position with respect to plant variety and the rights as a breeder is the same as with respect to copyright, designs and patents i.e. the said rights are statutory rights pure and simple, created for the first time vide and under the legislation with respect to each, and which did not exist under the common law. Reference in this respect, in relation to (i) Copyright, may be made to Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd. (2008) 13 SCC 30, Time Warner Entertainment Company, L.P. Vs. RPG Netcom 140 (2007) DLT 758 (DB), The Gramophone Company of India Ltd. Vs. Super Cassette Industries Ltd. 1998 SCC OnLine Del 929, Super Cassettes Industries Ltd. Vs. Chintamani Rao 2011 SCC OnLine Del 4712, Akuate Internet Services Pvt. Ltd. Vs. Star India Pvt. Ltd. 2013 SCC OnLine Del 3344, Navigators Logistics Ltd. Vs. Kashif Qureshi 254 (2018) DLT 307 and Satish Kumar Vs. Khushboo Singh

MANU/DE/3411/2019; (ii) Designs, may be made to Smithkline Beecham Consumer Healthcare GMBH Vs. G.D. Rathore 2002 SCC OnLine Del 52 and CROCS Inc. USA Vs. Aqualite India Ltd. 2019 SCC OnLine Del 7409; and, (iii) Patents, may be made to Novartis AG Vs. Union of India (2013) 6 SCC 1, Claudio De Simone Vs. Actial Farmaceutica SRL 2020 SCC OnLine Del 476, and Bristol-Myers Squibb Holdings Ireland Unlimited Company Vs. Natco Pharma (2020) 266 DLT 724.

¶33If as per the legislations with respect to intellectual property of patent and design, there is no right till the grant of registration, the question of the plaintiff herein, till the grant of registration under the PPVFR Act having any right, upon violation whereof any cause of action would accrue to the plaintiff, does not arise. Seen in this light, this suit filed prior to registration under the PPVFR Act is without any cause of action.

¶34It is perhaps for this reason only that the senior counsel for the plaintiff pegged his case on breach of agreement/undertaking and confidentiality code by the defendants no.1and 2 to the plaintiff by virtue of employment.

¶35I have however wondered that if the plaintiff, till the date the defendants no.1 and 2 were in employment of the plaintiff, had no rights in any work / development of variety carried out, whether confidentiality with respect thereto can be claimed. In my view, confidentiality and secrecy obligations can only be with respect to a right which the person is entitled to protect. What the plaintiff did not have any right in, the plaintiff could not have protected by entering into agreements with the defendants no.1 and 2 with respect thereto.

¶36I have, since reserving this order, had an occasion to deal with the said aspects also in Navigators Logistics Ltd. and Claudio De Simone supra.

¶37In Navigators Logistics Ltd. supra, finding that confidentiality and secrecy was claimed in the same works in which copyright was claimed, it was held that once the claim for copyright stood negated, there could be no claim for the same right by pleading confidentiality and secrecy and the same would amount to creating a new right. It was inter alia held: "40…… Copyright was also claimed in the same list and which has not been found. What troubled me was that the law having not protected such a list as a copyright, what could be right in law of the plaintiff to enforce confidentiality thereof. I then came across the article titled "The 'Other IP Right': Is It Time to Codify the Indian Law on Protection of Confidential Information" authored by Mr. Prashant Reddy T, Assistant Professor, NALSAR, Hyderabad published in Journal of National Law University, Delhi 5(1)1-21, analysing the law with respect to confidential information and authoring (i) Article 39 of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement signed by India imposed an obligation on contracting states to provide means to protect secret information that has commercial value from disclosure without the consent of the persons who have maintained the secrecy of such information; (ii) however India did not enact any new laws on the issue of trade secret protection meaning that Indian government considered its existing laws sufficient to comply with the requirements of Article 39;

(iii) confidential information under English law is protected under both common law and equity with remedies of injunction and damages; (iv) however English law does not equate information to property unlike some other jurisdictions, such as the United States where trade secrets are treated as property; (v) India's approach to confidential information has been the same as that of English Courts; (vi) Indian Courts, even in the absence of a contract have protected information received under a duty of confidence; reference is made to John Richard Brady Vs. Chemical Process Equipments Pvt. Ltd. AIR 1987 Del. 372; and, (vii) English Courts have implied a duty of fidelity into the arrangement between an employer and employee."

In the same judgment with respect to the claim under the head of "breach of employment contract", referring to Section 27 of the Contract Act, 1872, it was held: "53. A two Judge Bench of the Supreme Court, as far back as in Niranjan Shankar Golikari Vs. Century Spinning & Manufacturing Co. Ltd. AIR 1967 SC 1098 was concerned with a suit for injunction to restrain the employee, who had agreed to serve the employer for a fixed period, from during the said period, even after ceasing to be the employee of the plaintiff, joining employment of a competitor of the plaintiff. It was unanimously held that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract, than those in cases where it is to

operate during the period of contract of employment. In the facts of that case, it was found that the employee was privy to the special process invented / adopted by the plaintiff and of which the employee was trained and had acquired knowledge. The employee who had left employment prior to the contracted period was thus restrained from joining employment of a competitor for the remaining period for which he had contracted with the plaintiff in that case.

¶54A three Judge Bench of the Supreme Court in Superintendence Company of India (P) Ltd. Vs. Krishan Murgai 1981 2 SCC 246 was concerned with a claim for injunction post cessation of employment. It was held by two of the Judges on an interpretation of the restrictive clause in the Employment Contract, that the same was to apply only when the employee on his / her volition left the employment and not when the employer terminated the employment. The third Hon'ble Judge held that even if the restrictive covenant was to include cessation of employment at the volition of the employee, there could be no post-employment restriction under Section 27 of the Act.

¶55A subsequent two Judge Bench of the Supreme Court in Percept D'Mark (India) (P) Ltd. Vs. Zaheer Khan (2006) 4 SCC 227 refused enforcement of a post-employment restriction on the ground of same being barred by Section 27 of the Act.

¶56Applying the aforesaid law to the facts of the present case, it is found that as per the plaintiff also, there was no fixed term for which either of the defendants no.1 to 8 had agreed to serve the plaintiff. The clause in the Employment Contract claimed by the plaintiff also is to the effect that defendants no.1 to 8, for a period of one year after ceasing to be the employee of the plaintiff, to not compete with the plaintiff. Such a clause in the Employment Contract, as per the judgments aforesaid of the Supreme Court, is void under Section 27 of the Contract Act. Once the clause is void, there can be no injunction or damages in lieu of injunction on the basis thereof.

¶57The permanent injunction and in the alternative damages claimed on the premise of non-compete clause thus discloses no cause of action and is not required to be put to trial."

¶38In Claudio De Simone supra, dealing with a case of passing off and unjust enrichment without claiming any patent rights, it was held (i) unlike the intellectual property of trade mark, where the common law tort was statutorily recognized vide Section 27(2) of the Trademarks Act, there is no common law right in an invention as the plaintiffs therein claimed De Simone Formulation to be; it is only by statute i.e. the Patents Act, that to give impetus to research and innovation, rights in an invention are conferred but again unlike trade mark, for a limited period of time; (ii) it is only when a patent has been obtained with respect to an invention, in accordance with the Patents Act, that the inventor or the patentee is entitled to prevent others from making using or selling the patented product; there is no right in

common law in any inventor to restrain others from commercially exploiting the invention; (iii) Placing reliance on Akuate Internet Services Pvt. Ltd. supra, where in the context of a claim for injunction restraining the defendants from disseminating contemporaneous match information in the form of ball by ball account or minute to minute score updates/match alerts, for a premium and without obtaining licence from plaintiff and dealing with the argument of the defendant therein unfairly competing with the plaintiff, it was held: "10. The plaint, in my view, does not disclose any cause of action against any of the defendants on the ground of passing off their goods as that of the plaintiffs. My reasons therefor are as follows: A. …………. B. …………. C. …………. D. In Akutate Internet Services supra, in the context of a claim for injunction restraining the defendants from disseminating contemporaneous match information in the form of ball by ball account or minute to minute score updates/match alerts, for a premium and without obtaining licence from plaintiff, the argument of defendants unfairly competing with the plaintiffs was rejected holding (i) that in doing so, the Courts would be granting protection to certain intangibles not covered by the specific statutory regimes; (ii) the basic economic rule is that competition is not only lawful but a mainspring of the

economy; (iii) the legislature has recognized that there should be exceptions-it has laid down the rules for these; the laws of patents, trademarks, copyrights and designs have all been fashioned for the purpose; each of them have rules for their existence... each has their own justification; (iv) it is not for the judges to step in and legislate into existence new categories of intellectual property; (v) it is not open for the Courts to create such judicial remedies to remedy what the Courts consider unfair; it is not open to the Court to legislate in this way; (vi) recognition of a general action for "unfair competition" involves not more than recognition of the fact that the existence of such an action is inconsistent with the established limits of the traditional and statutory causes of action which are available to a trader in respect of damage caused or threatened by a competitor; those limits, which define the boundary between the area of legal or equitable restraint and protection and the area of untrammelled competition, increasingly reflect what the Parliament has determined to be the appropriate balance between competing claims and policies; (vii) neither legal principle nor social utility requires or warrants the obliteration of that boundary by the importation of cause of action whose main characteristic is the scope it allows, under high-sounding generalizations for judicial indulgence of idiosyncratic notions of what is fair in the market place; (viii) the recent trend internationally to accord protection to rights in information in varying degrees or to accept the doctrine of unfair competition, especially in the European Union,

is pursuant to legislative action by the European Council, and not as a judicial extension; (ix) once we recognize that mere information cannot be the subject matter of protection under common law, it becomes apparent that other means continue to remain available to protect such information: by way of an action for breach of the common law duty of confidence, which is a right in personam against an individual who has come across such information under confidence, and crucially, is distinct from a propriety right in such information itself, opposable in rem; (x) there exists another cogent reason for denying the existence of any general misappropriation or unfair competition theory - i.e. that it would create a non-existent distinction between copying which is actionable under the Copyright Act and appropriation or misappropriation which is actionable under the doctrine of unfair competition; (xi) under the Copyright Act, the copying or reproduction of match information is permitted; to say that the doctrine of unfair competition prohibits the misappropriation of match information would either mean that misappropriation under common law can supplant the Copyright Act or that copying and misappropriation refer to two distinct acts, which would be a distinction without a difference; (xii) claims based on alternate common law remedies in respect of what is in the domain of a statute cannot be permitted; and, (xiii) claim on the basis of unjust enrichment is the same as a claim on basis of the doctrine of unfair competition."

It was further held: "G. The question thus, of the plaintiffs having any rights with respect to De Simone Formulation or right of preventing the defendants from claiming their product to be the same as De Simone Formulation in which the plaintiffs have no right, does not arise. H. The counsel for the plaintiffs, being well conscious of the aforesaid legal position has cleverly contended that though the defendants, if had discovered invention in De Simone Formulation on their own or by way of reverse engineering, could not have been restrained by the plaintiffs from marketing and selling De Simone Formulation, but because entered into an agreement with the plaintiffs for the plaintiffs to provide Know-How of De Simone Formulation, after knowing the Know-How from the plaintiffs cannot indulge in making and marketing the product as De Simone Formulation. I. The aforesaid argument overlooks that the De Simone Formulation has no patent in India and the plaintiff no.1, even as inventor thereof under the Patents Act, has no right to restrain the defendants from making or selling De Simone Formulation. The question which thus emerges is, whether an invention which does not qualify as patented product and has no property right therein, can acquire property rights by the third person entering into an agreement of exchange of Know-How and thus claiming confidentiality. In my opinion, no. Reference in this regard may be made to Navigators Logistics supra wherein I have held that

confidential information and trade secrets are not equated to property in India. J. The said Know-How, without patent being applied for with respect thereto, was in public domain and by conduct of the defendants the status thereof cannot be changed and the same cannot be conferred rights as are permitted to be conferred under the statute i.e. Patents Act, only in accordance with the provisions thereof. The plaintiffs' case is not of enforcement of contractual rights. K. The counsel for the plaintiffs, as recorded in the order dated 2nd December, 2019, has also sought to contend that a patent is different from Know-How. However, Section 7 of the Patents Act titled "Form of Application" requires every patent application to be accompanied with a provisional or complete specification and Section 10 of the Act titled "Contents of Specifications" requires the specification to describe the invention sufficiently indicate in the title the subject matter to which the invention relates and to fully and particularly describe the invention and its operation or use and the method by which it is to be performed, the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection, to define the scope of the invention for which the protection is claimed, and provide technical information on the invention in the abstract. The position becomes clear from Section 25 of the Patents Act, which permits the grant of patent to be opposed on the ground of the complete specification

furnished not sufficiently and clearly describing the invention or the method by which it is to be performed. Section 84 of the Act titled "Compulsory Licences", empowering the Controller of Patents to grant compulsory licence of patent enabling a person other than a patentee or others whom patentee has permitted to work the patent, is also indicative of patent, particularly the specifications therein, being self-sufficient to enable such person to work the patent even without the consent of the patentee. If the Know-How for manufacture of a product for which the patent has been obtained and which patent has lapsed was not proved in the specifications required to be furnished for obtaining a patent, no compulsory licence with respect to the said patent could have been granted inasmuch as compulsory licence would have been unable to work the patent without also knowing the other knowhow which the plaintiff no.1 claims to have kept to himself. L. In any case, information claimed to be confidential can be protected as trade secret only if such information is not available in the public domain and is hence unknown to others. Reference in this regard may again be made to Navigator Logistics supra, Ambience India Vs. Naveen Jain 122 (2005) DLT 421, Emergent Genetics Vs. Shailendra Shivam 2011 (125) DRJ 173, Tech Plus Media Pvt. Ltd. Vs. Jyoti Janda MANU/DE/2438/2014 and Satish Kumar supra. Since the plaintiffs have no subsisting patent protection in India, and since the patent based in US has expired, the innovation, as noted above, is in public domain. Hence, the claim for trade secret

protection falls and the defendants cannot be restrained from manufacturing the product, in spite of the Know-How Agreement, as otherwise it would amount to judicial creation of an extra-statutory monopoly for perpetuity in the invention, in contrast to the scheme of Patent Act, 1970 that seeks to bring an invention to public domain after the expiry of the term of the patent, and which is opposed to public interest as well as to judicial discipline."

¶39Mention may also be made of my recent judgment in Modicare Ltd. Vs. Gautam Bali 2019 SCC OnLine Del 10511 holding that (i) Section 27 of the Contract Act makes void i.e. unenforceable, every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind; (ii) it is incongruous that the law, on the one hand would disable a plaintiff from enforcing a contract where the defendant had voluntarily agreed not to do something, by going to the extent of declaring such contract void, but on the other hand, enable the same plaintiff to the same relief under the law of tort; to hold so, would make the law look like an ass; (iii) Section 27 has been held to have been enacted as a matter of public policy of India, and does not create any personal right, which can be waived; if it is the public policy of India that there can be no restraint on any one exercising a lawful profession, trade or business, not even when such person has voluntarily agreed not to, it belies logic that such public policy would not apply when the mischief sought to be prevented is sought to be practiced invoking law of torts; (iv) what is not contractually enforceable is also not enforceable invoking law of torts; (v) while under the common law in

England, restraints of trade, whether general or partial, may be good if they are reasonable or reasonably necessary with reference to public policy or for protection of interest of covenantee, in India, agreements in restraint of trade are governed by Section 27 and the question of reasonableness of restraint is outside the purview of Section 27—this explains, the law of tort of unlawful interference in business, in UK; (vi) however the same has no place in India;

(vii) principles of English Law cannot be imported once the Parliament has codified the said principles in the Contract Act; it is the language of the statute which alone has to be considered to ascertain its true meaning and scope; (viii) Section 27, on promulgation of the Constitution of India, conferring the right to practice any profession or to carry on any occupation, trade or business, the status of a Fundamental Right, under Article 19(1)(g) thereof, today has a different connotation; (ix) Article 19(6) only clarifies that nothing contained in Clause (g) shall affect the operation of any existing law or prevent the State from making any law, imposing in the interest of general public, reasonable restrictions on the exercise of right conferred by the said clause; (x) thus, restrictions, in the interest of general public and if reasonable, to the Fundamental Right to practice any profession or to carry on any occupation, trade or business, can be imposed only by law; (xi) the law of tort of unreasonable interference in carrying on business, in view of Section 27 of the Contract Act, was not the existing law within the meaning of Article 19 (6) of the Constitution; (xii) the right saved by Section 27 is a facet of Article 21 of the Constitution of India.

¶40In view of having dealt with the subject recently in judgments aforesaid, the need to say anything more is not felt; however though Emergent Genetics India Pvt. Ltd. supra has already been dealt with in my

earlier judgment but the senior counsel for the defendants also drew attention to certain passages which have relevance particularly to this dispute. It was held therein that the Courts are enjoined to interpret the law and the Constitution, keeping in view the Directive Principle of State Policy embodied in Part-IV of the Constitution of India; if the Courts were to accept, without any statutory regime, the plaintiffs' blanket assumption that it is possessed of confidential information in something, which plainly, is part of the material resource of the community, the Court would overstep the mandate of the Constitution, in its anxiety to protect such a perceived right.

¶41What follows is that the plaintiff, prior to obtaining registration under the PPVFR Act, cannot maintain a suit to restrain the defendants from infringing the rights which are yet to be conferred on the plaintiff on grant of registration. The matter in my view is also covered by the dicta of the Division bench of this Court in Prabhat Agri Biotech Ltd. supra though I must reiterate that appeal thereagainst is pending in the Supreme Court. Just like therein it was held that the rights of the applicant for registration as a plant variety are inchoate and not crystallized till grant of registration and the Registrar of Plant Varieties is not entitled to, pending registration, restrain another from commercially exploiting the plant variety, registration of which is sought, so will this Court as the Civil Court be not entitled to protect the claimed rights till crystallized by way of registration. The other reasoning given in the said judgment of, the same if permitted resulting in another being restrained though the application for registration may be ultimately dismissed, also holds good here.

¶42Resultantly, the plaintiff is not found to be having any rights, asserting which the suit was filed and the suit is dismissed.

¶43However, the subject being at a nascent stage, I refrain from imposing costs. Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J. MAY 15, 2020 'pp/gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 15th May, 2020 + CORAM: CS(OS) No.1163/2013, IA No.9631/2013 (u/O XXXIX R-1&2 CPC), IA No.9632/2013 (u/O XXVI R-9 CPC), IA No.9633/20I3 (u/O XXVI R-10A CPC), IA No.10077/2013 (for direction), IA No.14827/2013 (u/O VIII R-10 CPC), IA No.1402/2014 (u/O VIII R-1 CPC) & CCP No.64/2013 SUNGRO SEEDS LTD ..... Plaintiff Through: Mr. Sudhir Chandra, Sr. Adv. with Mr. Subhash Bhutona & Ms. Rhyea Malik, Advs. Versus DR. S.K. TRIPATHI & ORS. ..... Defendants Through: Mr. Jayant Bhushan, Sr. Adv. with Mr. Abhishek Saket, Ms. Vijaya Singh & Mr. Rahul Dubey, Advs. HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The defendant no.3 Nuziveedu Seeds Private Limited seeks rejection of the plaint. IA No.10058/2013 (of the defendant no.3 under Order VII R-11 CPC). 2. The plaintiff has instituted this suit, pleading (i) that the plaintiff is in the business of research, production, processing, marketing and sale of high quality hybrids and varietal seeds; (ii) that the defendant no.1 Dr. S.K. Tripathi and defendant no.2 Mr. Akhalesh Shukla are ex-employees of the plaintiff who have joined the employment of and are currently employed with the defendant no.3, a competitor of the plaintiff; (iii) that the plaintiff, to protect sensitive and confidential information relating to the product and product development know-how, varieties, hybrids, parent-lines, breeding strategies and associated know-how and trade secrets developed by the plaintiff, requires its employees to, at the time of joining the plaintiff company, enter into an employment agreement and undertake not to disclose any such sensitive and confidential information to any third party during the course of employment and at any time thereafter; (iv) the plaintiff also mandates its employees to execute a Deed of Assignment of all rights, title and interest to any and all intellectual property developed by the employee or in the development of which the employee has contributed, during the term of the employment with the plaintiff, to the plaintiff; (v) similar contracts were executed by the defendants no.1&2 also; (vi) that the defendants no.1&2 had access to the plaintiff's intellectual property including trade secrets such as the parent lines of the plaintiff's hybrids and seeds used for cultivation of the parent lines of the plaintiff's hybrids, breeding strategies etc.; (vii) one of the hybrid varieties developed by the plaintiff is the Cauliflower Hybrid no.SCFH-130 sold in the market under the name 'Katreena', which was released for commercial sale in the year 2006; (viii) that the defendant no.1 joined the plaintiff's predecessor on 1st January, 2001 as General Manager in Research Development Department and was responsible for conducting all research and development activities in relation to vegetable seeds of the plaintiff; (ix) that the defendant no.2 joined the plaintiff's predecessor on 1st January, 2001 as a Senior Field Assistant and was further designated as Technical Officer in the R&D Department; (x) the defendant no.1 supervised research and development activities of the plaintiff's hybrid seeds including the research relating to SCFH-130; (xi) the defendant no.2 had access to the plaintiff's confidential and sensitive information, data, breeding strategies and information for Cauliflower Hybrids including SCFH-130; (xii) that the defendant no.1 left the services of the plaintiff on 5th April, 2008; (xiii) that the defendant no.2 left the services of the plaintiff on 18th December, 2008; (xiv) that the defendants no.1&2 are currently employed with the defendant no.3; (xv) the defendants no.l&2, at the time of joining the services of the plaintiff, had entered into employment agreement whereunder they had agreed to keep confidential all matters relating to their job and employment with the plaintiff and not to give to anyone any particulars or details of any of the research, process or of administrative and/or organization