IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) No. 2010 of 2013
TELEFONAKTIEBOLAGET LM ERICSSON (PUBL) ..... Plaintiff
Through: Mr. Rajiv Nayar, Senior Advocate with Mrs. Pratibha M.Singh,
Mrs.Saya Chaudhary, Mr.Ashutosh Kumar and Mr. B. Prashant, Advocates.
GIONEE COMMUNICATION EQUIPMENT CO. LTD. and
ANR. ..... Defendants
Through: Mr. Saikrishna Rajagopal and Mr. J. Sai Deepak, Mr. Maanav Kumar
and Mr. Aditya Kutty, Advocates for Defendants/Applicant in IA No. 17578
of 2013 with Mr. Arvind R. Vohra, Director of Defendant No.2.
CORAM: JUSTICE S. MURALIDHAR
O R D E R
IA No. 17578 of 2013 (under Order XXXIX Rule 4 CPC)
2. Ms. Pratibha M. Singh, learned counsel for the Plaintiff/non-Applicant
accepts notice. Reply be filed within four weeks. Rejoinder thereto, if
any, be filed before the next date.
3. This is an application filed by both Defendants seeking vacation of
the interim order passed by this Court on 22nd October 2013.
4. The brief facts set out in the said order need not be repeated here.
The crux of the present application is that in similar matters involving
the same Plaintiff but involving other Defendants there has been an
interim arrangement put in place by the Court in terms of agreed terms.
A reference in particular is made to the interim arrangement in CS (OS)
No. 442 of 2013 (Telefonaktiebolaget LM Ericsson (PUBL) v. Mercury
Electronics and Anr.).
5. In the present case the following interim arrangement has been agreed upon by both parties without prejudice to their rights and contentions,
and are set out as under:
(1) The Plaintiff and both the Defendants agree to negotiate a FRAND
License agreement for India for the next one month, based on FRAND terms.
(2) The Defendants/Customs shall intimate the Plaintiff?s notified person
or counsel for the Plaintiff whenever a consignment arrives at the
Customs. The Plaintiff?s representatives or its counsel will, without
any delay and within 24 hours, take inspection of the consignment.
(3) The Defendants shall then, pending final determination of royalties
payable by the parties, agree to abide by the following interim
arrangement, purely as an ad-interim arrangement and subject to the final
outcome of its negotiations with the Plaintiff.
A. Both the parties agree that for the past period, on the sales of USD
24 million (approx.) made by the Defendants in India-they shall deposit a
sum of royalty calculated as per rates set out in ?B? below with the
Plaintiffs, within ten working days.
B. For the future period of one month during which the Plaintiff and the
Defendants shall negotiate inter se, the Defendants shall deposit the
following amount of royalty rates with the Plaintiffs:
i. For phones/devices capable of GSM-1.25% of sale price;
ii. For phones/devices capable of GPRS + GSM-1.75% of sale price;
iii. For phones/devices capable of EDGE + GPRS + GSM-2% of sale price;
iv. WCDMA/HSPA phones/devices, calling tablets-2% of the sale price;
v. Dongles, data cards-USD 2.50.
(4) The Defendants undertake to make a deposit of interim payments with
the Plaintiff as set out above, within 10 working days of the intimation
by Customs of the arrival of the consignment. Post inspection, the
Plaintiff will forthwith inform the Customs that it has no objection to
the release of the consignment so that the consignment could immediately
be handed over to the Defendants.
(5) Further, the Plaintiff undertakes as follows:
a. The Plaintiff shall on the first occasion, furnish an undertaking to
this Court that it shall keep the amounts separately in fixed deposits in
India subject to further orders by this Court;
b. the details of the account shall be furnished to this Hon?ble Court;
c. Both parties shall endeavour to negotiate the final FRAND terms by
30th November 2013, during which time the above arrangement shall
operate. If the negotiations for a FRAND licence do not fructify,
Plaintiff may seek reinstatement of the interim order dated 22nd October
(6) Customs are requested to cooperate with the parties and their counsel for implementation of this order. Copy of this order be served upon the
Customs authorities by the Registry as also by the counsel for the
(7) It is further agreed that the deposit of the above sums will be made
by Mr. Arvind R. Vohra, Director of Defendant No.2 who, it is stated, is
authorised to act on behalf of both Defendants.
6. Learned counsel for the Defendants submitted that amounts may be
permitted to be deposited by the Defendants in the Court rather than with
the Plaintiff till such time the parties are able to work out a
7. The Court having heard submissions of learned counsel for the
parties, is of the view that the amounts paid by the Defendants to the
Plaintiff pursuant to the above interim arrangement be kept by the
Plaintiff in interest bearing fixed deposits with any nationalised bank
with a copy of the fixed deposit receipts (?FDRs?) being placed on the
record of the Court and also given to learned counsel for the Defendants
with the further rider that the said FDRs will not be encashed by the
Plaintiff till further orders of the Court.
8. It is further clarified that this order will cover imports made by the
five import partners of Defendant No.1 as specified in para 1 of this
application i.e. U T Electronics, Trust Marketing/Akshar Telecom, United
Teleservices Ltd., United Telecoms Ltd. and Priyanka Telecom Ltd.
9. List on 19th February 2014 i.e. the date already fixed.
10. A copy of this order be given dasti to learned counsel for the
parties under the signature of the Court Master.
S. MURALIDHAR, J
OCTOBER 31, 2013
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