IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  24.
  
  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.
  
  
  
  
versus
  
  
  
  
  
  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
  
   31.10.2013
  
  
  
  IA No. 17578 of 2013 (under Order XXXIX Rule 4 CPC)
  
  1. Notice.
  
  
  
  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
  2013.
  
  
  (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
  parties.
  
  (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
  settlement.
  
  
  
  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
  
  dn
  
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