INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
6. Trial 6.1 Bench or Jury Trial There is no jury system in India. Cases are decided by judges, who are the presiding officers. 6.2 Trial Process A trade secrets case does not have a special trial process. It is governed by the law pertaining to civil commercial lawsuits, as previously discussed. The trial process can be briefly summarised as follows. • It commences with the court framing the main issues. • Thereafter, the plaintiff is directed to file evidence by way of an affidavit of its witnesses. This is followed by cross-examination of the plaintiff’s wit - nesses by the defendant’s advocate. • The defendant then files the affidavits of its wit - nesses, who will be cross-examined by the plain - tiff’s advocate. • Once the cross-examination of the witnesses of both parties concludes, the matter is listed for final arguments. • After hearing the final arguments, the court passes the final judgment. 6.3 Use of Expert Witnesses Expert witnesses do appear before Indian courts on a regular basis. The first kind of expert witness is a private expert wit - ness, who appears on behalf of a private party (ie, plaintiff/defendant). For instance, in cases involv - ing pharmaceuticals or telecommunications patent issues, parties file the evidence affidavit of an inde - pendent expert witness, who is someone of stature (such as the dean of a university, etc). Their testimony (ie, evidence affidavit) is also prepared in the same way as for other witnesses. An expert witness of one party will be cross-examined by the advocate of the other party, and vice versa. Independent experts charge fees depending on their expertise, experience and stature. Also, Chapter XI, Delhi High Court (Original Side) Rules, 2018 permits an expert witness to testify before it. Further, the Delhi High Court Intellectual Property
Rights Division Rules, 2021 Section 16 notes that, in the case of evidence by experts, this may be record - ed by resorting to procedures such as hot-tubbing or other procedures as the court deems fit. Under 39 (1) of the Bharatiya Sakshya Adhiniyam, 2023, when a court/judge is confronted with an issue that requires expert advice and opinion for resolution, they can refer that issue to an expert (eg, an expert on handwriting, fingerprinting, foreign law, etc). In Dr Sudipta Banerjee v LS Davar and Company and Others , FMAT 735 of 2021, the Hon’ble Calcutta High Court held that the remedies available to the owner of trade secrets include: • an injunction preventing the licensee from disclos - ing the trade secret; • return of all confidential and proprietary informa - tion; and • compensation for any losses suffered owing to disclosure of such trade secret. As opined by courts in India and by the Supreme Court in Kashi Math v Sudhindra AIR 2010 SC 296, it is well established that, in order to obtain preliminary injunctive relief, the party seeking the granting of such an order has to prove that: 7. Remedies 7.1 Preliminary Injunctive Relief • they have made out a prima facie case for trial; • the balance of convenience is in their favour; and • they will suffer irreparable loss if the injunction is not granted. The purpose of passing injunctive relief is to ensure that evidence is not destroyed and that further dam - age to the plaintiff is prevented. Usually, when the court passes preliminary injunctive relief, it is valid till such time as the matter is finally argued or till the court vacates or modifies it. Also, if the injunctive relief is contingent on certain other facts, it can vary accordingly.
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