Sunday, 6 September 2020

What is distinction between O 7 R 10 of CPC(Return of plaint) and S 10 of CPC(Stay of suit)?

At the outset, it is necessary to note a submission, of Mr. Sai Deepak, that Order VII Rule 10, and Section 10, of the CPC, were required to be read together. This submission deserves, in my opinion, to be rejected even at this stage. A bare reading of Section 10, and Order VII Rule 10, of the CPC, reveals that the submission of Mr. Sai Deepak is, in fact, contrary to the statutory scheme, as contemplated in the said provisions. Section 10 deals with stay of a pending suit, and reads thus:

"10. Stay of suit.-

No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they, or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.-The pendency of the suit in a foreign Court does not preclude the Courts in India from trying the suit founded on the same cause of action."

Order VII Rule 10, per contra, deals with "return of plaint", and reads thus:

"10. Return of plaint.-

(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.-For the removal of doubt, it is hereby declared that the Court of appeal or revision may direct, after setting aside the decree passed in the suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.-On returning of plaint, the Judge shall endorse thereon the date of its presentation and returned, the name of the party presenting it, and a brief statement of the reasons for returning it."

33. The plain words of Section 10, and Order VII Rule 10, of the CPC, disclose that they contemplate distinct eventualities, and envisage distinct consequences. Section 10 does not, in any manner, impact the maintainability of the suit, which is required to be stayed thereunder. The Supreme Court has, in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara MANU/SC/1063/2004 : AIR 2005 SCC 242, held that Section 10 applies only where "the whole of the subject matter in both the suits is identical". The fundamental test, which would determine the applicability, or otherwise, of Section 10 has, in the said decision, been identified as "whether on final decision being reached in the previous suit, such a decision would operate as res judicata in the subsequent suit". The guiding philosophy, behind the provision is, quite obviously, the inadvisability of two courts dealing with identical disputes, between the same parties, concurrently. The progress of the later suit has, therefore, statutorily been required to await the outcome of the suit preferred earlier in point of time. As against this, Order VII Rule 10A specifically contemplates a situation in which the suit, imperilled by the provision, should not have been instituted in the court in which it was instituted. The provision, therefore, relates to the point of time, and the stage, when the suit was instituted in the court, in stark contradistinction with Section 10, which impedes the trial of the suit, but does not, even indirectly, visualize any lacuna in the institution of the suit. The consequence, of Section 10 being applicable to a particular case, is stay of the trial in that case. The plaint is not returned to the plaintiff, for institution elsewhere. As against this, Order VII Rule 10 stipulates that, where the suit was instituted in a court, in which it ought not to have been instituted, the plaint shall be returned to the plaintiff, for being instituted in the proper court. Invocation of Order VII Rule 10, therefore, results in removal, completely, of the suit, from the records of the court, where it was erroneously instituted, whereas invocation of Section 10 merely places the trial of the suit in, as it were, a state of suspended animation.

34. The contention of Mr. Sai Deepak that Section 10 and Order VII Rule 10 of the CPC are required to be read together is, therefore, fundamentally misconceived, and is accordingly rejected.

IN THE HIGH COURT OF DELHI

I.As. 2594, 2595, 2596, 4274 and 5209/2020 in CS (COMM.) 611/2019

Decided On: 15.07.2020

FMC Corporation  Vs. NATCO Pharma Limited

Hon'ble Judges/Coram:
C. Hari Shankar, J.

Citation: MANU/DE/1380/2020


1. This order decides I.A. 2594/2020, I.A. 2595/2020, IA 2596/2020, I.A. 4274/2020 and I.A. 5209/2020, preferred in CS (COMM.) 611/2019. I.A. 2594/2020, I.A. 2595/2020 and I.A. 2596/2020 have been preferred by the defendant, under Section 26 (2), read with Order VI Rule 15A, Order VII Rule 11 and Section 10, read with Order VII Rule 10, of the Code of Civil Procedure, 1908 ("the CPC"), respectively, whereas I.A. 4274/2020 and I.A. 5209/2020 have been preferred by the plaintiff under Order VI Rule 17 of the CPC.

2. CS (COMM.) 611/2019, filed by the plaintiffs, alleges infringement, by the defendant, of Indian Patent No. IN 201307 (hereinafter referred to as "IN 307"), registered by the plaintiff in respect of a molecule which is known by the generic name 'Chlorantraniliprole', and is also, apparently for the sake of convenience, denoted as "CTPR", and Indian Patent No. IN 213332 (hereinafter referred to as "IN 332"), covering "A Process for Preparing a Compound of Formula 1" which covered, inter alia, the process of making CTPR. Accordingly, it seeks a decree of permanent injunction, restraining the defendant from infringing the said patents, and also claims damages. The prayer clause, in the plaint, reads thus:

"In light of the above facts and circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to grant the following reliefs in favour of the Plaintiffs:

a. A decree of permanent injunction restraining the Defendant, its directors, employees, officers, servants, agents and all others acting for and on their behalf from making, using, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, dealing in any product that infringes the claimed subject matter of the Plaintiffs' Indian Patent No. 201307 or any of the claims thereof, including Chlorantraniliprole, and any forms thereof;

b. A decree of permanent injunction restraining the Defendant, its directors, employees, officers, servants, agents and all others acting for and on its behalf from using, directly or indirectly, any of the processes claimed under Indian Patent No. 213332;

c. An order for damages in favour of the Plaintiffs and against the Defendant as stated hereinabove; or

d. An order requiring the Defendant to render accounts of all sums earned by the Defendant through their unlawful and infringing activities referred to in this plaint and a decree for the same in favour of the Plaintiffs and against the Defendant;

e. An order for costs in the proceedings; and

f. Any order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

3. Para 36 of the plaint avers that the plaintiff learnt, recently, of a suit, having been filed by the defendant before the City Civil Court in Hyderabad, for a declaration of non-infringement in respect of IN 307 and IN 332, and for a declaration that CTPR is covered by the written description of certain prior patents, which constitutes "prior art" and is, therefore, in the public domain, available to anyone who seeks to commercially deal therein. The said civil suit, numbered OS 867/2019, was filed, before the City Civil Court, Hyderabad, by the defendant, on 20th September, 2019, and impleads, as the defendants therein, E.I. Dupont De Nemours & Co. (the original patentee in respect of the CTPR suit patent, of whom the plaintiff claims to be an assignee, in respect thereof), as well as the present plaintiffs. It is averred, in the said plaint, that CTPR was disclosed in United States Patent 5998424 (US 424), US Patent 6020357 (US 357) and PCT International Publication WO 01/70671 (WO 71), much prior to the priority date of IN 307 and IN 332 which, therefore, constituted "prior art". The cause of action, for filing the said suit, as disclosed in para 46 thereof, is the awareness, obtained by the plaintiff therein (i.e. the defendant in the present proceedings) of IN 307 and IN 332, and the applications for registration of the said patents, filed by the present plaintiffs, on or around March 2019. Accordingly, the said plaint, as preferred in the City Civil Court, Hyderabad, prays thus:

"In view of the foregoing submissions, the Plaintiff most respectfully prays that this Hon'ble Court may be pleased:

a) A decree of declaration holding that Chlorantraniliprole is covered by the written description of US Patents 5998424, US 6020357 and WO 01/70671 and is in the public domain, and therefore the making, manufacturing, selling, marketing, advertising and offering to sell the Plaintiff of such product is legal and justified;

b) A decree of permanent injunction restraining the Defendants and their principal officers, directors, agents, family members, servants, dealers, distributors, affiliates, sister concerns and/or anyone acting for or on their behalf from threatening and hampering the business of the Plaintiff in any manner whatsoever, either by contacting the Plaintiff dealers, distributors, customers, etc. or by making any misrepresentation about the Plaintiff product and business;

c) Any such further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

4. The present suit being a commercial suit, the plaint, as filed by the plaintiffs, is accompanied by a Statement of Truth, as required by Order VI Rule 15A of the CPC (as inserted in Order VI of the CPC by the Commercial Courts Act, 2015). As Order VI Rule 15A was heavily relied upon, by learned Counsel for the defendant, while arguing these applications, it would be advantageous to reproduce the said provision, thus:

15A. Verification of pleadings in a Commercial Dispute.-

(1) Notwithstanding anything contained in rule 15, every pleading in a Commercial Disputes shall be verified by an affidavit in the manner and form prescribed in the Appendix to this Schedule.

(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to the proceedings, or by any other person on behalf of such party or parties who is proved to the satisfaction of the Court to be acquainted with the facts of the case and who is duly authorised by such party or parties.

(3) Where a pleading is amended, the amendments must be verified in the form and manner referred to in sub-rule (1) unless the Court orders otherwise.

(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence of any of the matters set out therein.

(5) The court may strike out a pleading which is not verified by a Statement of Truth, namely the affidavit set out in the Appendix to this Schedule."

5. Consequent on issuance of summons in the present suit, written statement was filed, by the defendant, on 17th February, 2020. Close on the heels thereof, I.A. 2594/2020 (under Section 26(2) read with Order VI Rule 15A, CPC), I.A. 2595/2020 (under Order VII Rule 11, CPC) and I.A. 2596/2020 (under Section 10 read with Order VII Rule 10, CPC) were filed, by the defendant, in the present proceedings, on 20th February, 2020.

6. On a careful consideration of the material on record, and the rival submissions, as urged by learned Counsel before me, I am of the opinion that I.A. 4274/2020 and I.A. 5209/2020, of the plaintiffs, deserve to succeed, and I.A. 2594/2020, I.A. 2595/2020 and I.A. 2596/2020, filed by the defendant, are bound to fail.

7. The reasons for the above decision may be set out, in respect of each application, individually.

I.A. 4274/2020 and I.A. 5209/2020 (by the plaintiffs under Order VI Rule 17, CPC)

8. I.A. 4274/2020 sought to amend the verification, below the plaint, and the corresponding paragraph in the Statement of Truth, filed with the plaint in accordance with the requirement of Order VI Rule 15A, CPC.

9. The verification below the plaint, as filed originally, read thus:

"Verified in Delhi on this 31st day of October 2019, that the contents of paras 2 to 10, 36, 38 and 39 are true to my knowledge and based on the records maintained by the Plaintiff Companies in the regular course of business; the contents of 11 to 28, 39, 41 and 42 are based on information received and believed by me to be true; the contents of paragraphs 1, 37, 38 to 57 are based on legal and technical advice received and believed to be true and lastly, paragraph 58 is the Prayer before this Hon'ble Court."

I.A. 4274/2020 sought to amend the afore-extracted verification, below the plaint, to read as under:

"Verified in Mumbai on the 29th day of October, 2019, that the contents of paragraphs 2 to 10, 29 to 33, 35, 36, 38 and 39 are true to my knowledge and based on the records maintained by the Plaintiff Company's in the regular course of business; the contents of 11 to 28, 39, 41 and 42 are based on information received and believed by me to be true; the contents of paragraphs 1, 30, 31, 34, 35, 37, 38 to 57 are based on legal and technical advice received and believed to be true and correct and lastly, paragraph 58 is the Prayer before this Hon'ble Court."

10. Similarly, para 3 of the Statement of Truth, accompanying the plaint (as required by Order VI Rule 15A, CPC), as originally filed and as proposed to be amended, read thus:

As originally filed

"I say the statement made in paragraphs 2 to 10, 11 to 28, 39, 36, 38, 41 and 42 of the plaint are true to my knowledge and belief and based on the records maintained by the Plaintiffs companies in the ordinary course of business and based on information received which I believe to be correct and statements made in paragraphs 1, 37, 38 to 57 of the plaint are based on legal advice."

As proposed to be amended

"I say the statement made in paragraphs 2 to 10, 29 to 33, 35, 36, 38, and 39 of the plaint are true to my knowledge and based on the records maintained by the Plaintiff companies in the regular course of business; the contents of 11 to 28, 39, 41 and 42 of the plaint are based on information received and believed by me to be true, the contents of paragraphs 1, 30, 31, 34, 35, 37, 38 to 57 of the plaint are based on legal and technical advice received and believed to be true and correct and lastly, paragraph 58 is prayer clause before this Hon'ble Court."

11. Importantly, para 3 of I.A. 4274/2020 specifically avers that the plaintiffs were seeking to amend the verification, at the end of the plaint, as well as the statement of truth accompanying the plaint, by submitting that "the plaintiff by way of the present application seeks to correct this inadvertent error by revising the verification paragraph of the plaint and the statement of truth to include a reference to the said missed out paragraphs."

12. Even while I.A. 4274/2020 was pending, the plaintiffs preferred I.A. 5209/2020, also under Order VI Rule 17, CPC, seeking, once again, to amend the verification, below the plaint, and the Statement of Truth accompanying the plaint. It was submitted, in the said application, that, in the amended verification paragraph, as proposed in I.A. 4274/2020, the date had, inadvertently, been entered as "29th October, 2019, instead of 29th May, 2020", as the amended plaint has been signed and verified by Mr. Nilesh Limaye, on behalf of the plaintiffs, in Mumbai on 29th May, 2020. Accordingly, an entirely amended verification was filed with the application. Para 3 of the Statement of Truth, accompanying the plaint, as proposed to be amended by I.A. 4274/2020, was not changed; however, after para 3, an additional para 4 was proposed to be added, in the Statement of Truth. The application prayed that these amendments be allowed. The "further amended" verification, and the newly introduced para 4 of the Statement of Truth, read thus:

Further amended verification:

"Originally verified at New Delhi on 31st October, 2019; the proposed amended verification verified in Mumbai on the 29th May of May, 2020 and presently being re-verified in Mumbai on this first day of July 2020, that the contents of paragraphs 2 to 10, 29 to 33, 35, 36, 38 and 39 are true to my knowledge and based on the records maintained by the Plaintiff Companies in the regular course of business; the contents of 11 to 28, 39, 41 and 42 are based on information received and believed by me to be true; the contents of paragraphs 1, 30, 31, 34, 35, 37, 38 to 57 are based on legal and technical advice received and believed to be true and correct and lastly, paragraph 58 is the Prayer before this Hon'ble Court."

Newly introduced para 4 in the Statement of Truth:

"4. I say that inadvertently some paragraphs of the plaint (as highlighted above) had been missed out from the Statement of Truth filed along with the plaint originally filed. I am according the filing a revised statement of truth in support of all the paras of the plaint."

13. It is apparent, therefore, that, in the verification below the plaint, the changes, proposed by I.A. 4274/2020, were the following:

(i) To the paras which were verified as being "true to my knowledge and based on the records maintained by the Plaintiff Companies in the regular course of business", paras 29 to 33 and 35 were added.

(ii) To the paras which were verified as being "based on legal and technical advice received and believed to be true and correct", paras 30, 31, 34 and 35 were added.

(iii) The place of verification of the plaint was changed from Delhi to Mumbai, and the date of verification of the plaint was changed from 31st October, 2019 to 29th October, 2019.

14. The verification, as proposed to be further amended by I.A. 5209/2020, differed from the proposed amended verification in I.A. 4274/2020, only with respect to the place and date of verification of the plaint. The "further amended" verification (as proposed by I.A. 5209/2020) recited that the plaint was "originally verified at New Delhi on 31st October, 2019; the proposed amended verification reverified in Mumbai on the 29th day of May, 2020 and presently being reverified in Mumbai on this 1st day of July 2020".

15. Insofar as para 3 of the Statement of Truth, accompanying the plaint, was concerned, there was-as Mr. Sai Deepak has correctly pointed out-a discrepancy between the verification at the end of the plaint and para 3 of the Statement of Truth (as would be apparent from a comparison of the verification and the said paragraph, both of which have been reproduced hereinbefore). The amendment of para 3 of the Statement of Truth, as proposed in I.A. 4274/2020, sought to correct this discrepancy, and incorporate certain other changes. The changes, sought to be effected in para 3 of the Statement of Truth, by I.A. 4274/2020, were the following:

(i) Whereas para 3 of the Statement of Truth, as originally filed, recited that "the statement made in paras 2 to 10, 11 to 28, 39, 36, 38, 41 and 42" of the plaint were true "to the knowledge and belief" of the deponent to the Statement of Truth, para 3, as proposed to be amended by I.A. 4274/2020, recited that "the statement made in paras 2 to 10, 29 to 33, 35, 36, 38 and 39 of the plaint" were true "to the knowledge" of the deponent.

(ii) The word "ordinary", as contained in the phrase "records maintained by the Plaintiff companies in the ordinary course of business" in para 3 of the Statement of Truth was replaced by "regular".

(iii) Para 3, as originally filed, recited that "the statement made in paras 2 to 10, 11 to 28, 39, 36, 38, 41 and 42 of the plaint are true to my knowledge and belief based on the records maintained by the Plaintiff companies in the ordinary course of business and based on information received which I believe to be correct". Apart from the other changes, to this recital, to which allusion has already been made in (i) and (ii) supra, the words "and based on information received which I believe to be correct" were deleted, in the proposed amended para 3 of the Statement of Truth.

(iv) The words "and statements made in paras 1, 37, 38 to 57 of the plaint are based on legal advice", which followed thereafter, were replaced with the phrase "the contents of paras 1, 30, 31, 34, 35, 37, 38 to 57 of the plaint are based on legal and technical advice received and believed to be true and correct".

(v) An additional recital, in para 3 of the Statement of Truth, to the effect that para 58 of the plaint was the prayer clause, was added.

16. I.A. 5209/2020 did not propose any change in para 3 of the Statement of Truth accompanying the plaint, as already noted hereinabove. Para 4 was, however, proposed to be added to the Statement of Truth, as already extracted in para 12 supra.

17. The objections of the defendant, to the aforesaid amendments, as articulated by Mr. Sai Deepak before me, are the following:

(i) The prayer for amendment was belated.

(ii) Neither I.A. 4274/2020, nor I.A. 5209/2020, referred to the proposed amendments in the Statement of Truth. The recitals, in the said applications, were limited to the proposed amendments in the verification below the plaint.

(iii) Each application was filed, consequent to the defendant pointing out, during the course of arguments before this Court, the errors in the verification, or the Statement of Truth, as filed by the plaintiffs.

(iv) The amendments could not be regarded as merely "typographical", but had a significant bearing on the whole case.

(v) In the verification clause, on each occasion, i.e. in I.A. 4274/2020 and, thereafter, in I.A. 5209/2020, changes were proposed to the place, as well as the date, of verification. This raised "serious questions about how any cross examination can even be conducted at trial".

(vi) The "heads of verification" in the Statement of Truth were changed significantly, with the basis of pleading truth, for the paras of the plaint, changing from "records" to "information received" and even to "technical advice". This, too, had "a serious impact on cross examination since certain facts can be based on legal advice and may not have any relevance to any technical aspects and vice versa".

(vii) Reference to "information received", without any identification of the place from where the information was received, "adversely impacted any possibility of compliance with trial procedures".

18. There can be no gainsaying that the plaintiff has, in a commercial suit of this magnitude, been woefully lackadaisical in the drafting of the verification, below the plaint, as well as in the corresponding paragraph of the Statement of Truth accompanying the plaint. Mr. Sai Deepak is correct in pointing out that the very intention of introducing Rule 15A, in Order VI of the CPC, was to chart out a different regime, where commercial suits were concerned, which requires a correspondingly greater degree of circumspection and care, on the part of the parties to the suit. Errors and omissions, which may, hypothetically, be excused in an ordinary suit, may face a more rigorous examination, in a commercial suit.

19. That, however, is where, in my opinion, we must draw the line. Mr. Sai Deepak has sought to extrapolate the distinction, between ordinary and commercial suits, to contend that the general principles, governing amendments, and the circumstances and considerations, to be borne in mind while allowing amendments, as visualised in the context of Order VI Rule 17, CPC, would not apply to commercial suits. The submission has merely to be urged to be rejected. While introducing provisions, governing commercial suits, which were distinct and different from those governing ordinary suits, the legislature, in its wisdom, has not chosen to chalk out any different regime, where amendment of pleadings is concerned. Amendment of pleadings, in commercial suits, continue, as do pleadings in original suits, to be governed by Order VI Rule 17, and it is not for this Court to embark on an excursion of judicial legislation, by subjecting a prayer for amendment, relatable to Order VI Rule 17 of the CPC, to any greater degree of circumspection, where the cause is commercial, as compared to non-commercial causes. Courts must resist the temptation to be quixotic, if we are not to be beset by the tribulations that visited Cervantes' gallant hero.

20. The principles governing Order VI Rule 17 of the CPC are trite and well settled, and copious reference to authorities is hardly required. The governing philosophy behind the provision, as pithily encapsulated in Rajesh Kumar Aggarwal v. K.K. Modi MANU/SC/8043/2006 : (2006) 4 SCC 385, is that "the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side". In Revajeetu Builders & Developers v. Narayanaswamy & Sons MANU/SC/1724/2009 : (2009) 10 SCC 84, while reiterating, definitively, that "all those amendments must be allowed which are imperative for determining the real question in controversy between the parties", the Supreme Court culled out the following defining principles, governing the exercise of jurisdiction, while dealing with applications for amendment (in para 63 of the report):

"(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

21. Revajeetu Builders & Developers MANU/SC/1724/2009 : (2009) 10 SCC 84 is an instructive and important decision, as it digests several earlier authorities, which lay down authoritative principles, regarding the allowing of amendments, under Order VI Rule 17. Some of these may be enumerated thus:

(i) Amendments, of the plaint, which alter materially, or substitute, the cause of action or the nature of the claim, ought not to be allowed.1

(ii) The object of courts is to decide the rights of the parties, and not to punish them for mistakes they made in the conduct of the cases by deciding otherwise than in accordance with their rights. There is no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it could be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and allowing such amendments is not a matter of favour or grace. As soon as it appears that the way in which a party had framed his case would not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it could be done without injustice, as anything else in the case is a matter of right.2

(iii) Amendments, which introduce claims which would otherwise be barred by limitation are, ordinarily, not to be allowed. However, this rule is not universal and, while the consideration of whether the cause, sought to be introduced by the amendment, would be barred by time, is required to be taken into account by the court, it does not affect the power of the court to allow the amendment, if it is required in the interests of justice.3

(iv) Mere defects in pleadings, the removal of which does not change the quality or quantity of the reliefs sought, or introduce a new case, are required to be permitted to be remedied by amendment.4

(v) Rules of procedure are intended to be a handmaiden to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or infraction of the rules of procedure. The court always grants leave, to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that, by his blunder, he has caused injury to his opponent which cannot be compensated by costs. "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."5

(vi) Courts are required to be extremely liberal in granting prayers for amendment of pleadings, unless serious injustice or irreparable loss is caused to the other side.6

(vii) Courts cannot adopt a hypertechnical approach in such matters. Technicalities of law cannot be permitted to hamper courts in the administration of justice between the parties.7

(viii) Subject to the aforesaid principles, "full powers of amendment must be enjoyed and should always be liberally exercised".8

22. More recently, in Varun Pahwa v. Renu Chaudhary MANU/SC/0307/2019 : (2019) 15 SCC 628, it was held thus:

"The rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives lead to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."

23. Applying the above principles, it is obvious that the amendments, in the verification, below the plaint, and in para 3 of the Statement of Truth accompanying the plaint, as proposed in I.A. 5209/2020, are required to be allowed. Trial, in the case, is yet to begin. The defendant has not placed once scintilla of material, on record, or advanced any submission, whatsoever, to indicate that allowing the amendments, as sought by the plaintiffs, would result in irreparable prejudice to the defendant. Recitals, regarding the place and date, when the plaint was verified, and the basis for claiming the contents, of the various paragraphs, in the plaint, to be true and correct, are within the knowledge of the deponent and, if, as originally filed, any error, omission, existed in respect thereof, there can be no embargo, whatsoever, on the deponent rectifying the error, by invoking the jurisdiction, of the Court, to allow amendment of the pleadings. Processual justice cannot afford to be tight-fisted. The submission that the amendments had "a significant bearing on the whole case", "a serious impact on cross examination" and "adversely impacted any possible of compliance with trial procedures" are, quite obviously, merely platitudes, with little substance. The submission that allowing the amendments, in para 3 of the Statement of Truth, and in the verification below the plaint, would impede cross examination, or due compliance with trial procedures, is completely incomprehensible; significantly, though these contentions have been advanced, in para 2 of the written submissions, placed on record by the defendant after reserving of judgment on these applications, Mr. Sai Deepak, with his experience, did not seek to so urge during arguments. The mere fact that the amendments may have been sought, consequent to the lacunae, in the verification and the Statement of Truth, having been pointed out by the defendant during arguments before this Court, cannot, either, constitute a ground to reject the prayer for amendment. At all times, it has to be remembered that the power to allow amendment is in furtherance of the duty, of the court, to decide the lis before it on merits, unencumbered by technical considerations and is required, therefore, to be exercised with the full awareness of the sweep and expansiveness it possesses. Disallowing the amendments, as sought, and allowing the suit to proceed to trial with the defects, in the verification below the plaint, and in the corresponding paragraph of the Statement of Truth, remaining unremedied, would go against the very grain and philosophy of Order VI Rule 17. Such an approach has, therefore, sedulously to be avoided.

24. Applying the principles governing Order VI Rule 17 of the CPC, as enunciated in the various authorities to which reference has already been made hereinabove, I am of the clear opinion that the interests of justice would mandate allowing of the amendments, as sought in I.A. 5209/2020. I.A. 4274/2020 would not, consequently, survive for consideration.

I.A. 2594/2020 (by the defendant under Order VI Rule 15A, CPC)

25. I.A. 2594/2020, as preferred by the defendant under Order VI Rule 15A, CPC, is premised on the following averments/assertions:

(i) Section 26 (2) of the CPC, as inserted w.e.f. 23rd October, 2015 by the Commercial Courts Act, requires the affidavit, accompanying the plaint, in every commercial suit, to be "in the form and manner as prescribed under Order VI Rule 15A".

(ii) Order VI Rule 15A requires the plaint to be accompanied by an affidavit, in the form and manner prescribed, and sub-rule (5) of Order VI Rule 15A empowers the Court to strike out a pleading, in a commercial suit, which was not verified by such a Statement of Truth.

(iii) Proper institution of a commercial suit, in accordance with Section 26 (2) of the CPC, requires proper verification of the pleadings in the plaint. If any paragraph, of the plaint, is not supported by the verification, at the end of the plaint, or by the Statement of Truth accompanying the plaint, or if the verification clause in the plaint and the Statement of Truth are mutually destructive, the suit is not properly instituted.

(iv) The verification below the plaint, and para 3 of the Statement of Truth, were, in the present case, discrepant, as they read thus:

Verification below the plaint

"Verified in Delhi on this 31st day of October 2019, that the contents of paragraphs 2 to 10, 36, 38 and 39 are true to my knowledge and based on the records maintained by the Plaintiff Companies in the regular course of business; the contents of 11 to 28, 39, 41 and 42 are based on information received and believed by me to be true; the contents of paragraphs 1, 37, 38 to 57 are based on legal and technical advice and believed to be true and correct and lastly, paragraph 58 is the Prayer before this Hon'ble Court.

Para 3 of Statement of Truth

"I say the statement made in paragraphs 2 to 10, 11 to 28, 39, 36, 38, 41 and 42 of the plaint are true to my knowledge and belief based on the records maintained by the Plaintiff companies in the ordinary course of business and based on information received which I believe to be correct and statements made in paragraphs 1, 37, 38 to 57 of the plaint are based on legal advice."

(v) Paras 29 to 35 of the plaint were not supported by verification.

(vi) This could lead to one of two consequences, i.e., either the suit was liable to be returned as not having been properly instituted, or paras 29 to 35 thereof were liable to be struck off, under Order VI Rule 16 of the CPC, which would result in the suit being liable to be rejected for not setting out any cause of action.

26. The defendant pleaded, therefore, that the suit, of the plaintiffs, be dismissed as not having been properly instituted.

27. With the allowing, by me, of the amendments sought in I.A. 5209/2020, it is obvious that nothing survives for consideration in this application. That the plaint was, even as originally filed, accompanied by a Statement of Truth, which was in the form prescribed in Order VI Rule 15A, cannot be denied. It is true that there were discrepancies, between the verification below the plaint, and the corresponding paragraph in the accompanying Statement of Truth, but the said discrepancies stand cured, by the amendments sought by the plaintiffs, and allowed by me hereinabove. As so amended, there remains no discrepancy, between the verification, at the end of the plaint, and the corresponding paragraph in the Statement of Truth accompanying the plaint. There is, therefore, complete compliance with Order VI Rule 15A of the CPC. The submission, to the contrary, by the defendant has, therefore, necessarily to be rejected.

28. Order VI Rule 16 of the CPC-on which, too, Mr. Sai Deepak sought to rely-empowers the Court to strike out, or amend, any matter in any pleading,

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.

29. To me, the invocation of Order VI Rule 16 of the CPC, in the facts of the present case, is completely inexplicable. Mr. Sai Deepak sought to contend that, by seeking to amend the verification, below the plaint, and the Statement of Truth accompanying the plaint, at this "belated" stage, the plaintiffs were delaying the progress of the suit, which justifies invocation of Order VI Rule 16. He also sought to submit that these belated amendments amounted to "abuse of the process of the Court". The submissions are, in my view, completely bereft of substance. The plaintiffs have merely sought to correct certain errors, which crept into the verification below the plaint, and in the Statement of Truth. Given the rigours to which pleadings, in commercial suits, are subject-which Mr. Sai Deepak himself acknowledges-these corrections were necessary, in order to ensure proper trial of the suit. It cannot, therefore, be said that, by moving applications, for carrying out the said amendments, the plaintiffs were delaying the progress of the suit, or indulging in abuse of process.

30. Mr. Sai Deepak referred me to the decision in Amar Singh v. U.O.I. MANU/SC/0596/2011 : (2011) 7 SCC 69, which, in his submission, underscores the importance of the verification clause below the plaint. It becomes unnecessary to allude to the said decision, as amendment of the verification, below the plaint, has been allowed by me, hereinabove.

I.A. 2596/2020 (by the defendant under Order VII Rule 10, read with Sections 10 and 151, CPC)

31. The prayer clause, in this application, seeks return of the plaint, under Order VII Rule 10, CPC, as also stay of the proceedings in the present suit, till conclusion of OS 867/2019, pending before the City Civil Court, Hyderabad.

32. At the outset, it is necessary to note a submission, of Mr. Sai Deepak, that Order VII Rule 10, and Section 10, of the CPC, were required to be read together. This submission deserves, in my opinion, to be rejected even at this stage. A bare reading of Section 10, and Order VII Rule 10, of the CPC, reveals that the submission of Mr. Sai Deepak is, in fact, contrary to the statutory scheme, as contemplated in the said provisions. Section 10 deals with stay of a pending suit, and reads thus:

"10. Stay of suit.-

No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they, or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.-The pendency of the suit in a foreign Court does not preclude the Courts in India from trying the suit founded on the same cause of action."

Order VII Rule 10, per contra, deals with "return of plaint", and reads thus:

"10. Return of plaint.-

(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.-For the removal of doubt, it is hereby declared that the Court of appeal or revision may direct, after setting aside the decree passed in the suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.-On returning of plaint, the Judge shall endorse thereon the date of its presentation and returned, the name of the party presenting it, and a brief statement of the reasons for returning it."

33. The plain words of Section 10, and Order VII Rule 10, of the CPC, disclose that they contemplate distinct eventualities, and envisage distinct consequences. Section 10 does not, in any manner, impact the maintainability of the suit, which is required to be stayed thereunder. The Supreme Court has, in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara MANU/SC/1063/2004 : AIR 2005 SCC 242, held that Section 10 applies only where "the whole of the subject matter in both the suits is identical". The fundamental test, which would determine the applicability, or otherwise, of Section 10 has, in the said decision, been identified as "whether on final decision being reached in the previous suit, such a decision would operate as res judicata in the subsequent suit". The guiding philosophy, behind the provision is, quite obviously, the inadvisability of two courts dealing with identical disputes, between the same parties, concurrently. The progress of the later suit has, therefore, statutorily been required to await the outcome of the suit preferred earlier in point of time. As against this, Order VII Rule 10A specifically contemplates a situation in which the suit, imperilled by the provision, should not have been instituted in the court in which it was instituted. The provision, therefore, relates to the point of time, and the stage, when the suit was instituted in the court, in stark contradistinction with Section 10, which impedes the trial of the suit, but does not, even indirectly, visualize any lacuna in the institution of the suit. The consequence, of Section 10 being applicable to a particular case, is stay of the trial in that case. The plaint is not returned to the plaintiff, for institution elsewhere. As against this, Order VII Rule 10 stipulates that, where the suit was instituted in a court, in which it ought not to have been instituted, the plaint shall be returned to the plaintiff, for being instituted in the proper court. Invocation of Order VII Rule 10, therefore, results in removal, completely, of the suit, from the records of the court, where it was erroneously instituted, whereas invocation of Section 10 merely places the trial of the suit in, as it were, a state of suspended animation.

34. The contention of Mr. Sai Deepak that Section 10 and Order VII Rule 10 of the CPC are required to be read together is, therefore, fundamentally misconceived, and is accordingly rejected.

35. I proceed, therefore, to consider the challenge, as predicated by Mr. Sai Deepak on the basis of Order VII Rule 10, and Section 10, separately.

Re. Order VII Rule 10

36. Before proceeding to the grounds, on which Mr. Sai Deepak seeks return of the present plaint, to the plaintiffs thereunder, it would be appropriate to examine Order VII Rule 10 of the CPC itself, in the first instance, in the light of the law as enunciated by the Supreme Court thereon.

37. In Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan MANU/SC/1970/2007 : (2007) 4 SCC 343, it was held that, while "there (was) no doubt that at the stage of consideration of the return of the plaint under Order 7 Rule 10 of the Code, what is to be looked into is the plaint and the averments therein... at the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit".

38. Ordinarily, Order VII Rule 10 of the CPC merits invocation in cases where the suit has been filed in a court, which lacks jurisdiction to adjudicate it. In Inacio Martins v. Narayan Hari Naik MANU/SC/0288/1993 : (1993) 3 SCC 123, the Supreme Court held that "where the entire dispute falls outside the civil court's jurisdiction on account of the change in law the proper course would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A of the Code of Civil Procedure." To the same effect are Sri Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar MANU/SC/0236/1963 : (1964) 3 SCR 763 : AIR 1965 SC 338 and R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd. MANU/SC/0320/1993 : AIR 1993 SC 2094.

39. A leading, though brief, judgment, which deals specifically with applications, seeking the return of the plaint, filed by way of demurrer, and not at trial, is Exphar SA v. Eupharma Laboratories Ltd. MANU/SC/0148/2004 : AIR 2004 SCC 1682 which holds that where the objection, on the basis of which the prayer for return of the plaint, under Order VII Rule 10, or for rejection of the plaint under Order VII Rule 11, of the CPC, is raised at the initial stage, before commencement of the trial, the objection must proceed on the basis that the facts pleaded by the initiator of the impugned proceedings are true. The allegations made in the written statement, filed by the defendant, cannot be seen, in such a circumstance. Mr. Sai Deepak has sought to distinguish the said decision, on the ground that, in that case, no application had been preferred by the defendant, either under Order VII Rule 10, or under Order VII Rule 11, of the CPC. Para 8 of the report reveals that this, indeed, was the position that obtained in that case; however, para 9, which immediately follows, posits the law de hors this lacuna on the part of the defendant in that case. For ready reference, paras 8 and 9 of the report, to the extent they are relevant, may be reproduced thus:

"8. We find that there was neither an application for rejection of the plaint nor for return of the plaint under Order 7 Rules 11 and 10 of the Code of Civil Procedure, 1908 filed by the respondents and the order of the Division Bench directing return of the plaint was wholly outside the scope of the pending appeals. In fact, the issue relating to territorial jurisdiction of the High Court to entertain the appellants' suit was not even raised in the memorandum of appeal.

9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct."

(Italics and underscoring supplied)

40. In fact, in the opinion of this Court, the key to comprehending Order VII Rule 10, of the CPC, lies in the provision itself. Viewed in the backdrop of the present facts, Order VII Rule 10 would justify return of the plaint, to the plaintiffs, for institution at Hyderabad, provided this Court is in a position to return a finding that the present suit ought to have been instituted at Hyderabad. The question to be addressed is, therefore,-ought the present suit to have been instituted at Hyderabad, instead of Delhi? This would also invite, contrariwise, the query-ought the present suit not to have been instituted in Delhi? It is only if the response, to both these queries, is in the affirmative, that a case, for return of the plaint, can be said to have been made out.

41. Adverting, now, to the grounds, on which the return of the plaint has been sought, under Order VII Rule 10, CPC, the application avers thus:

(i) The territorial jurisdiction of the court, to entertain a lis under the Patents Act, is bound by the confines of Section 20 of the CPC, as is admitted in para 56 of the plaint.

(ii) Paras 55 and 56 of the plaint seek to justify the invocation of the jurisdiction of this Court on the ground that

(a) the plaint is in the nature of a quia timet action, based on an apprehension that the defendant was likely to launch the impugned product,

(b) the defendant had filed OS 867/2019 before the City Civil Court, Hyderabad, and

(c) the defendant has filed a caveat in the present proceedings.

(iii) The filing, by the defendant, of OS 867/2019, before the City Civil Court, Hyderabad, cannot constitute, validly, any part of the cause of action for institution of the present suit. OS 867/2019 seeks a declaration that CTPR is publici juris. It does not seek a declaration of non-infringement, under Section 105 of the Patents Act.

(iv) The defendant is based in Hyderabad. The manufacturing facilities of the defendant are in Andhra Pradesh. No part of the cause of action, therefore, arose within the jurisdiction of this Court. Reliance has been placed, in this context, on New Moga Transport Co. v. United India Insurance Co. Ltd. MANU/SC/0398/2004 : (2004) 4 SCC 677 and Patel Roadways Ltd. v. Prasad Trading Company MANU/SC/0280/1992 : (1991) 3 SCR 391.

(v) If the institution of OS 867/2019, at Hyderabad, by the defendant, is pleaded as the cause of action for the present plaint, the present plaint ought to have been instituted in Hyderabad, and not in Delhi.

(vi) Unlike other statutes, dealing with intellectual property rights, the Patents Act does not contain any special jurisdiction clause, as would justify invocation of the jurisdiction of this Court, by the plaintiff.

(vii) The filing of patent application No. 201841015241, by the defendant, which is cited as another part of the cause of action, in the present plaint, took place at Chennai, and not in Delhi.

(viii) The reliance, by the plaintiff, on the research report, dated June 2019, of J.M. Financial Institutional Securities, too, does not justify invocation of the jurisdiction of this Court, as the report does not disclose any intention, of the defendant, to launch its product in Delhi.

(ix) The defendant does not have a registered office, or branch office, at Delhi. All that it has, in Delhi, is a depot, for pharmaceutical products, which operates under a license issued under the Drugs and Cosmetics Act, 1940, and does not deal with agrochemical products. In any event, in view of the law laid down in New Moga Transport Co. MANU/SC/0398/2004 : (2004) 4 SCC 677 and Patel Roadways Ltd. MANU/SC/0280/1992 : (1991) 3 SCR 391, the jurisdiction of a Court could not be invoked merely on the ground of presence of a branch office, of the defendant, within such jurisdiction.

(x) A vague claim of an apprehension of infringement, of the suit patent, within the territorial jurisdiction of this Court, could not justify the invocation thereof.

42. During the course of arguments, Mr. Sai Deepak also invokes the principle of forum non conveniens. In his submission, as the defendant, i.e. his client, was based in Hyderabad, and had filed OS 867/2019 prior, in point of time, to the filing of the present suit by the plaintiffs, applying the principle of forum non conveniens, the present suit ought to have been filed in Hyderabad.

43. This submission, of Mr. Sai Deepak, merits rejection, straightaway, as it stands covered by the decision, of a Division Bench of this Court, authored by Sanjay Kishan Kaul, J. (as he then was) in Horlicks Ltd. v. Heinz India (Pvt.) Ltd. MANU/DE/2721/2009 : (2009) 164 DLT 539 (DB) which, after an incisive study of the evaluation of the forum non conveniens doctrine, with all its inflexions, held, authoritatively, that the principle had no application to domestic suits. Paras 78, 86, 88 and 90 of the decision merit reproduction, in extenso, thus:

"78. The aforesaid exposition thus shows that principles while exercising the discretionary jurisdiction under Article 226 of the Constitution of India cannot ipso facto be applied to a civil proceeding governed by the said Code. Not only that, the principle of forum non conveniens emerged as a principle of admiralty law applicable primarily to foreign forums. It finds no place in a domestic forum in India. The plaintiff is always the dominus litis and so long as the Court has jurisdiction to try a suit, a party cannot be non-suited. A suit has to be governed by the provisions of the said Code. In this context, we may refer to the observations made in Abdul Gafur v. State of Uttarakhand, MANU/SC/3415/2008 : (2008) 10 SCC 97, where the Supreme Court held that since Section 9 of the said Code provides that a civil Court shall have jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred, the civil Courts have inherent jurisdiction unless a part of that jurisdiction is carved out. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute. It was further observed that a plaint can only be rejected in terms of Order 7 Rule 11 of the said Code and similarly a plea of bar to jurisdiction of a civil Court can be examined.

*****

86. The impugned judgment is predicated on the omnibus powers under Section 151 of the said Code where despite the plaintiff being dominus litis, the Court is empowered to pass orders in litigation, which may be vexatious or oppressive. We have already discussed the legal principles aforesaid to conclude how in a domestic forum, the institution of a suit must necessarily be governed by the provisions of the said Code and the interpretation of the same by the Supreme Court after amendment of the said Code. The reasoning in the impugned judgment, thus, cannot be sustained. The principle of forum non conveniens cannot be introduced by concluding that Section 20 of the said Code is not exhaustive or draw strength from the power to stay suit under Section 10 of the said Code. The stay of suit proceedings under Section 10 of the said Code must be for the reasons set out in the said provision.

*****

88. We are in agreement with the submissions of the learned Counsel for the appellants that if the principle of forum non conveniens would be applied to a civil suit governed by the said Code, the plaintiff would be left in the dark. There may be more than one Court which may have jurisdiction in the matter but so long as a particular Court has the jurisdiction, the privilege is of the plaintiff. The plaintiff may be made to run from one Court to the other without knowing where the initial case ought to be instituted. Such a situation is not envisaged by the said Code.

*****

90. We thus hold that the principle of forum non conveniens has no application to domestic forums in India which are governed by the said Code."

(Emphasis supplied)

44. The reliance, by Mr. Sai Deepak, on the forum non conveniens principle has, therefore, necessarily to be held to be misguided.

45. Apropos Mr. Sai Deepak's submission that this Court does not possess the jurisdiction to entertain the present suit, Mr. Sudhir Chandra, learned Senior Counsel for the plaintiffs has invited my attention to para 56 of the plaint, which reads thus:

"This Hon'ble Court has jurisdiction to entertain the present suit under Section 20 of the Code of Civil Procedure, 1908 for the following reasons:

i) The Defendant can be said to be carrying on business and personally working for gain within the jurisdiction of this Hon'ble Court, through their office in Delhi. Further, as the Defendants employees including those responsible for business development, sales and marketing are situated in Delhi, any product that the Defendant manufactures and commercially launches, including the infringing CTPR product would necessarily be intended to be sold in Delhi;

ii) The Defendant has purposefully availed of the jurisdiction of this Hon'ble Court and it is very believed that once launched, the infringing product of the Defendant would be available for sale all over the country, including within the jurisdiction of this Hon'ble Court. This is credible since several other products of the Defendant are widely available within the jurisdiction of this Hon'ble Court;

iii) The Defendant's website has an application which allows customers from all over the world, including from within the jurisdiction of this Hon'ble Court to make enquiries or even place orders regarding products of the Defendant. The Defendant can therefore also be said to have purposefully availed themselves of the jurisdiction of this Hon'ble Court;

iv) furthermore, the Plaintiffs submit that a part of the cause of action has arisen in New Delhi as the Defendant has customers, consumers, buyers and host of other persons for various aspects of their business activities in New Delhi and are involved in a large number of activities in New Delhi. All these established beyond doubt that the Defendant has targeted New Delhi and has purposefully availed of the jurisdiction of this Hon'ble Court.

v) It is further submitted that the Central Insecticide Board (CIB) is located in Faridabad, which falls within the National Capital Region. It is therefore reasonable to apprehend that anybody who manufactures and insecticide (like in infringing CTPR product), including the Defendant, will necessarily apply for and be granted a registration for its pesticide product by the CIB. Further, it is reasonable to apprehend that the Defendant will coordinate with the CIB for registration of its products through its Delhi Office. These facts further give jurisdiction to this Hon'ble Court."

46. Quia timet actions, for protecting a registered intellectual property right from infringement, constitute a cloistered and valuable legal resource. The plaintiffs have relied, in this context, on the judgments, of this Court in Jawahar Engineering Co. v. Javahar Engineers Pvt. Ltd. MANU/DE/0412/1983 : AIR 1984 Del 166 : (1983) 24 DLT 129 (DB), Mars Incorporated v. Kumar Krishna Mukerjee MANU/DE/1784/2002 : (2003) 26 PTC 60, Pfizer Products, Inc. v. Rajesh Chopra MANU/DE/0708/2006 : (2006) 127 DLT 783 and Teva Pharmaceutical Industries Ltd. v. Natco Pharma Ltd MANU/DE/1373/2014 : (2014) 210 DLT 591 (DB).

47. The reliance is well-placed. The Division Bench of this Court has, in Teva Pharmaceutical Industries MANU/DE/1373/2014 : (2014) 210 DLT 591 (DB), held, unambiguously, thus:

"We are unable to find any basis for holding that though on the basis of above mentioned the plaint, this Court will have territorial jurisdiction, the same can be ousted on the statement of the respondent/defendant of not doing/intending to do act, to prevent which suit is filed, within the territorial jurisdiction of this Court. We are of the opinion that once the appellants/plaintiff have pleaded apprehension of sales/marketing in Delhi, the Courts in Delhi would have jurisdiction to entertain the suit and such jurisdiction cannot be ousted by the defendant by making a statement not to do any such act in Delhi, though the defendant would be entitled to prove that there is no basis for such apprehension. If such a cause of action were to be permitted, it would enable a defendant to avoid action in a particular Court by making such a statement and indulge in forum shopping."

(Emphasis supplied)

48. The above enunciation was followed, by a Single Bench of this Court, in N.V. Distilleries Pvt. Ltd. v. Frost Falcon Distilleries Ltd. MANU/DE/4334/2018 : 2019 (174) DRJ 700: 2019 (77) PTC 333 (Del). Paras 22 to 24 and 26 of the judgment read thus:

"22. The counsel for the plaintiff argues, that (i) the plaintiff has nowhere in the plaint admitted to the applicant/defendant having subordinate office or branch office at Haryana; (ii) plea, of the applicant/defendant having a distillery at Sonipat in Haryana is not a plea of the applicant/defendant having a subordinate/branch office at Haryana; (iii) Black's Law Dictionary defines a 'branch bank' as an office of a bank physically separated from its main office, with common service and functions, and corporately part of the bank and a branch office of a bank includes office, unit, station, facility, terminal, space or receptacle at a fixed location other than a principal office; (iv) that a distillery does not qualify as a branch office; (v) that the present suit is in the nature of a quia timet action and the Division Bench of this Court in Allied Blenders & Distillers Pvt. Ltd. Vs. R.K. Distilleries Pvt. Ltd. MANU/DE/0500/2017 : 2017 (69) PTC 493 (Del) has held that if there is a reasonable and credible apprehension that the impugned product would also be launched and sold in New Delhi, it constitutes a cause of action for instituting a suit in the nature of a quia timet action and the cause of action would accrue at Delhi; (v) that the Division Bench in Allied Blenders & Distillers Pvt. Ltd. supra has further held that considerations with regard to territorial jurisdiction in the context of Order VII Rule 10 are entirely different from those in the context of an application under Order XXXIX Rules 1 and 2 of the CPC; (vi) in the backdrop of Order VII Rule 10 of the CPC, it is only the averments contained in the plaint that have to be seen; (vii) the averments contained in the plaint in the present suit disclose this Court to be having territorial jurisdiction and the plaint cannot be ordered to be returned on the ground of this Court not having territorial jurisdiction at this stage; (viii) mere denial by the applicant/defendant of not intending to launch its product in Delhi cannot defeat a quia timet action; reliance in this regard is placed on the dicta of the Division Bench of this Court in Teva Pharmaceutical Industries Ltd. Vs. Natco Pharma Ltd. MANU/DE/1373/2014 : (2014) 210 DLT 591.

23. The senior counsel for the applicant/defendant in rejoinder has contended that there can be no distillery without a branch office.

24. Merit is found in the contentions aforesaid of the counsel for the plaintiff also, to defeat this application for return/rejection of the plaint.

*****

26. The senior counsel for the applicant/defendant has not clarified whether according to the applicant/defendant, the applicant/defendant can be sued under Section 20 of the CPC only at Sonipat, Haryana. Applying Section 134 of the Trade Marks Act and in accordance with the dicta of the Division Bench of this Court in Ultra Home Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey MANU/DE/0121/2016 : (2016) 227 DLT 320, the plaintiff, having its registered office at Delhi and distillery at Ambala (if treated to be a subordinate office), would be entitled to sue the defendant at Ambala also and the defendant cannot compel the plaintiff to sue the defendant in the Courts at Sonipat, Haryana only."

49. This application, seeking return of the plaint under Order VII Rule 10, CPC, having been brought by the defendant before trial of the suit has commenced, has to be decided on the demurrer that the factual averments, in the plaint, are correct. So seen, it is clear that the assertions contained in para 56 of the plaint, as reproduced hereinabove, do entitle the plaintiffs to maintain a quia timet action, for patent protection, within the territorial jurisdiction of this Court. It cannot, therefore, be said that the present plaint ought not to have been instituted in this Court, as would justify the return thereof, in exercise of the powers conferred by Order VII Rule 10 of the CPC. Incidentally, it has not been averred, by the defendant, in any of the pleadings thus far, or in its written submissions, that the defendant would not be manufacturing or marketing its CTPR product within the territorial confines of the jurisdiction of this Court.

50. Reliance was also placed, by Mr. Sai Deepak, on Section 20 of the CPC, pressing into service, in juxtaposition therewith, the judgment of the Supreme Court in Patel Roadways Ltd. MANU/SC/0280/1992 : (1991) 3 SCR 391. It was sought to be contended, by Mr. Sai Deepak, that, applying the law laid down in Patel Roadways Ltd. MANU/SC/0280/1992 : (1991) 3 SCR 391, where the cause of action arose at a place where the subordinate office of his client was situate, the Court, having territorial jurisdiction over such office, alone could be approached. The plaintiffs have sought to refute the contention by pointing out that Patel Roadways Ltd. MANU/SC/0280/1992 : (1991) 3 SCR 391 dealt only with clause (a) of Section 20, and not with clause (c) thereof.

51. Before adverting to the decision in Patel Roadways Ltd.MANU/SC/0280/1992 : (1991) 3 SCR 391, Section 20 of the CPC is required to be reproduced, thus:

"20. Other suits to be instituted where defendants reside or cause of action arises.-

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily recites, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily recites, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, all the defendants who do not reside, or carrying on business, or personally works again, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation.-A Corporation shall be deemed to carry on business at its sole or the principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

52. In my opinion, the reliance, by Mr. Sai Deepak, on the decision in Patel Roadways Ltd. MANU/SC/0280/1992 : (1991) 3 SCR 391, is misguided. The Supreme Court was seized with two appeals, arising out of two different suits, involving different parties, but similar controversies. It would be sufficient to advert to the facts in one of the suits. Prasad Trading Company entrusted a consignment of cardamom to Patel Roadways, to be delivered at Delhi. Patel Roadways transported the consignment to Delhi and stored it in its godown, where the consignment got damaged in a fire. As a result, the consignee refused to take delivery. Prasad Trading company sued Patel Transport, in the Court of the Subordinate Judge, Periakulam, in whose jurisdiction the subordinate office of Patel Roadways was situate, and where the goods were entrusted to Patel Roadways, for transport to Delhi. Patel Roadways objected to the institution of the suit at Periakulam, on the ground that the contract, between Prasad Trading Company itself vested jurisdiction, to decide any dispute, only with courts at Bombay. The learned Trial Court repelled the contention, and Civil Revision, preferred thereagainst, by Patel Roadways failed. Patel Roadways, therefore, appealed to the Supreme Court. The issue before the Supreme Court was, therefore, whether, in view of the vesting of jurisdiction in the court said Bombay, by virtue of the clause in the contract between Prasad Trading Company and Patel Transport, courts at Bombay alone had jurisdiction to try the suit, and the jurisdiction of the Periakulam court was barred.

53. Para 9 of the report notes, at the very outset, that it was not urged, before the Supreme Court, by Patel Roadways, that the cause of action arose, wholly or in part, in Bombay. Consequently, noted the Supreme Court, clause (c) of Section 20 of the CPC was not attracted to the facts of the case before it. Para 9 deserves, in fact, to be reproduced, thus:

"Clauses (a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia "carries on business". Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. It has not been urged before us on behalf of the appellant that the cause of action wholly or in part arose in Bombay. Consequently clause (c) is not attracted to the facts of these cases. What has been urged with the aid of the Explanation to Section 20 of the Code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. On a plain reading of the Explanation to Section 20 of the Code we find an apparent fallacy in the aforesaid argument. The Explanation is in two parts, one before the word "or" occurring between the words "office in India" and the word "in respect of" and the other thereafter. The Explanation applies to a defendant which is a corporation, which term, as seen above, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually carrying on business at that place, it will "be deemed to carry on business" at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The words "at such place" occurring at the end of the Explanation and the word "or" referred to above which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office"."

(Emphasis Supplied)

54. Patel Roadways MANU/SC/0280/1992 : (1991) 3 SCR 391 would not apply, in the facts of the present case, for two reasons. One-to which the plaintiffs rightly allude-is that the case of the plaintiffs, for invoking the jurisdiction of this Court, is sustainable even on the anvil of clause (c) of Section 20-which, as is specifically noted by the Supreme Court, was not invoked before it. The second is directly relatable to the Explanation below Section 20 which, in fact, constitutes the raison d'etre for the judgment. The Explanation may, at the cost of repetition, be reproduced thus:

"A Corporation shall be deemed to carry on business at its sole or the principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

(Emphasis supplied)

55. In the concluding sentence, in para 9 of its judgment, the Supreme Court has held that the use of the words "or" and "at such place", in the Explanation to Section 20 of the CPC, clearly suggested that, if the case fell within the latter part of the said Explanation, then, in respect of any cause of action arising at a place where the defendant had a subordinate office, the court having territorial jurisdiction over such subordinate office alone could adjudicate on the lis. In Patel Roadways MANU/SC/0280/1992 : (1991) 3 SCR 391, no part of the cause of action arose at Bombay, to which court, the contract, between the parties, vested jurisdiction. The goods had been consigned, to Patel Roadways at Periakulam, where it had a subordinate office. The Supreme Court, therefore, held that the Court, having jurisdiction over such subordinate office, alone could adjudicate on the suit. In contradistinction, in the present case, the plaintiffs do not seek to contend that jurisdiction would vest in a court, where no part of the cause of action arose. Neither is the present case one in which the contract, between the parties, vested jurisdiction in a court which was a total stranger to the lis. Thirdly, clause (c) of Section 20 of the CPC directly applies, in view of the specific averment, in para 56 of the plaint, that the allegedly offending goods are likely to be sold at Delhi. This averment, in the backdrop in which it has been made in para 56 of the plaint, cannot be treated as an idle apprehension, voiced merely to clothe this Court with jurisdiction in the matter. In fact, significantly, para 41 of the plaint refers to six other infringement suits, pending against the defendant before this Court. None of the said suits, it is specifically averred, have been returned for lack of jurisdiction.

56. The prayer, of the defendant, for return of plaint to the plaintiff, under Order VII Rule 10, of the CPC has, therefore, necessarily to be rejected.

Re. Section 10, CPC

57. Section 10 of the CPC restrains, statutorily, a Court, from proceeding with the trial of any suit, in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. Trial of the present suit is yet to commence. Apropos Section 10, the Supreme Court has held, in Pukhraj J. Jain v. Gopalkrishna MANU/SC/0364/2004 : (2004) 7 SCC 251 (in para 4 of the report), thus:

"However, mere filing of an application under Section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where a subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side."

(Emphasis supplied)

58. Section 10 of the CPC reads thus:

"10. Stay of suit.-No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.-The pendency of the suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

(Emphasis supplied)

59. The ground on which Mr. Sai Deepak seeks to invoke Section 10 of the CPC, in the present case, appears, ex facie, to be in conflict with the grounds urged by him, to justify invocation of Rules 10 and 11 of Order VII. While seeking the return of the plaint, under Order VII Rule 10, or rejection thereof, under Order VII Rule 11, the defendant has sought to contend that OS 867/2019, pending before the City Civil Court at Hyderabad, is distinct from the present suit, as that suit does not seek any injunction, against the perceived infringement, by the defendant, of IN 307, or IN 332, but merely seeks a declaration that CTPR is covered by "prior art". This contention, as urged by the defendant, directly defeats the reliance, by the defendant, on Section 10 of the CPC, as the said provision applies only where, in the earlier suit, the matter in issue is also directly and substantially in issue in the later suit. In seeking stay of the present proceedings, under Section 10 of the CPC, the defendant is, therefore, resorting to approbate and reprobate, and urging conflicting pleas, which is impermissible in law.9 It is well settled that, though a party may urge alternative pleas, conflicting stances, before the court of law, are to be eschewed.

60. Any further examination, of the plea of the defendant, to stay the present proceedings under Section 10 of the CPC, stands obviated by the judgment, of a coordinate Bench of this Court in Bristol-Myers Squibb Holdings Ireland Unlimited Company v. Natco Pharma MANU/DE/0185/2020, the dispute in which was identical, on facts and in law, to that before me. Paras 2 to 4 of the decision would make this abundantly clear:

"2. The three plaintiffs, namely (i) Bristol-Myers Squibb Holdings Ireland Unlimited Company, (ii) Bristol-Myers Squibb India Private Ltd. and (iii) Pfizer Limited have instituted this suit against the sole defendant, for permanent injunction to restrain the defendant from infringing Indian Patent No. IN247381 (hereinafter referred to as 'junior patent') having International Non-Proprietary Name 'APIXABAN', granted to the plaintiff No. 1 on 4th April, 2011, including by selling 'APIGAT' and for ancillary reliefs. The plaintiffs, in the plaint have disclosed (a) that the plaintiff No. 1, on 11th November, 2010, was also granted Indian Patent No. IN243917 (hereinafter referred to as 'senior patent') having International Non-Proprietary Name Nitrogen Containing Heterobicycles As Factor Xa Inhibitors; (b) that the said senior patent does not specifically disclose 'APIXABAN', subject matter of the junior patent but is generically covered therein and therefore manufacture by the defendant of 'APIXABAN' constitutes infringement of the senior patent as well; and, (c) that the plaintiffs reserved their right to sue the defendant with respect to the senior patent.

3. The suit, instituted on 4th July, 2019, came up first before this Court on 5th July, 2019 when the counsel for the defendant appeared on caveat. The suit was entertained and summons thereof ordered to be issued.

4. It is inter alia the case of the defendant in its written statement, as also in the application under Section 10 of the CPC,:

(i) that the defendant filed a civil suit against the plaintiffs before the City Civil Court at Hyderabad praying for the following reliefs:

"a) Declaration holding that Apixaban is covered by written description of IN 243917 and is therefore in public domain and manufacture of Apixaban by a member of the public is justified.

b) Permanent injunction restraining Patentee (Bristol Myers) from threatening and hampering the business of Natco with respect to Apixaban."

(ii) that the defendant also filed an application for interim relief in its suit at Hyderabad, to restrain the plaintiffs from threatening the defendant and from taking any legal action against the defendant in respect of the senior patent and the junior patent;

(iii) that the said suit filed by the defendant was heard by the City Civil Court at Hyderabad on 28th June, 2019, when summons thereof and notice of the application for interim relief therein were issued for 8th July, 2019;

(iv) that the plaintiffs were served with the said summons/notice on 1st July, 2019;

(v) that the plaintiffs, having full knowledge of the prior suit filed by the defendant in Hyderabad, immediately proceeded to file the present suit in this Court, to avoid the hearing before the City Civil Court, Hyderabad;

(vi) that the plaintiffs have entered appearance in the Hyderabad suit and filed application under Order VII Rule 11 of the CPC therein;

(vii) that at the heart of and critical to determination of issues in this suit as well as in the Hyderabad suit, are the contents and scope of disclosure of the senior patent and contents and scope of disclosure and claims contained in the junior patent;

(viii) that the reliefs sought by defendant in the Hyderabad suit require determination, whether the senior patent discloses 'APIXABAN';

(ix) that if the declaration sought by the defendant in Hyderabad suit is ordered, then any action of defendant of making and selling 'APIXABAN' would not be an infringement of the junior patent, subject matter of this suit;

(x) that the Hyderabad suit is the previously instituted suit and under the principles enshrined in Section 10 of the CPC, the present suit is liable to be stayed till such time as the proceedings in the Hyderabad suit are concluded;

(xi) that any interim relief granted in the present suit will have a direct bearing to the issue in the Hyderabad suit;

(xii) that the plaintiff No. 1 in this suit is the defendant in the Hyderabad suit along with Bristol-Myers Squibb Company, USA; thus, the parties in the two suits are the same;

(xiii) that the matter in issue in the previously instituted Hyderabad suit is also a matter substantially in issue in this suit;

(xiv) that it is defendant's assertion in the Hyderabad suit that 'APIXABAN' is a product disclosed but not claimed in the senior patent and therefore 'APIXABAN' is in public domain and can be made and sold by any entity, irrespective of grant of or fear of hindrance through the junior patent;

(xv) that both proceedings require interpretation of Law and determination of facts, even at the interim stage; the preliminary fact for determination is, whether the written description of the senior patent describes 'APIXABAN' and if yes, whether such description is sufficient and adequate to enable a person of skill in the art to manufacture the product;

(xvi) that the issues in the present suit are inextricably linked with and predicated upon the findings in the Hyderabad suit regarding the scope of disclosure in the senior patent and the freedom to make and sell 'APIXABAN' based on such disclosure;

(xvii) that the City Civil Court, Hyderabad is a Court of competent jurisdiction to grant the relief claimed therein; and,

(xviii) that the Hyderabad City Civil Court and this Court are Courts of concurrent jurisdiction within the meaning of Section 10 of the CPC."

61. The defendant, in that case (who is, incidentally, the defendant in the present suit as well), claimed the following reliefs, before the City Civil Court at Hyderabad:

"a) A decree of declaration holding that the Plaintiff is entitled to make, manufacture, use, sell, market, advertise, exercise, offer for sale the product Apixaban under any brand name being a product disclosed but not claimed in Indian Patent 243917 and therefore being a product in the public domain over which no patent protection exists;

b) A decree of permanent injunction restraining the Defendant and its principal officers, directors, agents, family members, servants, dealers, distributors, affiliates, sister concerns and/or anyone acting for and on their behalf from threatening and hampering the business of the Plaintiff in any manner whatsoever, either by contacting the Plaintiff's dealers, distributors, customers, etc. or by making any misrepresentation about the Plaintiff's product and business or by taking any coercive action of any nature whether regulatory or legal against the Plaintiff with respect to the Suit Patent IN'243917;

c) Any such further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

There is, clearly, substantial similarity, between the prayers of the defendant, in OS 867/2019, filed before the City Civil Court, Hyderabad, and the prayers in the suit, again filed at Hyderabad, in the aforesaid judgment.

62. This Court went on to hold, for a plethora of reasons, which it chose to exhaustively enumerate, that no case, for staying the proceedings before this Court, under Section 10 of the CPC, arose, merely by reason of the suit which was pending before the City Civil Court at Hyderabad.

63. Admittedly, though the aforesaid judgment, of the learned Single Judge in Bristol-Myers Squibb Holdings Ireland Unlimited Company MANU/DE/0185/2020 is presently in appeal, before a Division Bench of this Court in FAO (OS) (COMM) 42/2020, Mr. Sai Deepak acknowledges that no interim or interlocutory orders, staying or interdicting the effect of the judgment of the learned Single Judge, have been issued by the Division Bench. At the same time, he contends, several "key issues" were not addressed by the learned Single Judge, in respect whereof detailed written submissions, in a tabular format, have been filed. I do not deem it necessary to advert to the contentions advanced in the said submissions, which are, essentially, aimed at seeking to convince this Court that Bristol-Myers Squibb Holdings Ireland Unlimited Company MANU/DE/0185/2020 was not correctly decided. As a coordinate Single Bench, I am not persuaded to do so, especially as a Division Bench of this Court is in seisin of the appeal therefrom, and has not chosen to pass any interim orders, in favour of the appellant before it, who is the defendant before me.

64. For this reason, too, I am not persuaded to accept the plea, so assiduously canvassed by Mr. Sai Deepak, that the present suit deserves to be stayed, in view of the pendency of OS 867/2019 before the learned City Civil Court, Hyderabad.

65. Before concluding, on the application of the defendant, under Section 10 of the CPC, I may observe that the contention, of Mr. Sai Deepak, that this application was required to be decided as a preliminary issue, before this Court could adjudicate on the applications, of the plaintiffs, under Order XXXIX of the CPC, does not appear to be correct. Section 10 of the CPC, even if it were to apply, would have merely empowered this Court to stay the trial in the present suit. As has already been observed hereinabove, Section 10 does not imperil the jurisdiction, of the Court, before which the subsequent suit is filed, but merely directs stay of the trial of the subsequent suit, so that two competent courts, adjudicating the same issues, do not arrive at conflicting conclusions. Parallel trials, of the same issues, by two courts, is what Section 10 seeks to obviate. By its very nature, therefore, Section 10 does not inhibit either Court from considering applications for interim or interlocutory reliefs, preferred before them, under Order XXXIX of the CPC. Be that as it may, as I have expressed my view on the application, filed by the defendant in the present case under Section 10 of the CPC, this issue may, largely, be academic.

I.A. 2595/2020 (by the defendant under Order VII Rule 11, CPC)

66. I.A. 2595/2020, by the defendant, contends thus:

(i) Para 55 of the plaint, titled "Cause of Action" did not, in fact, make out any cause of action. A reading of the said para revealed that the plaint was only by way of a counterblast to OS 867/2019, filed by the defendant, against the plaintiffs, before the learned City Civil Court, Hyderabad. For ready reference, para 55 of the plaint may be reproduced, thus:

"In the light of the aforementioned facts, it is submitted that the cause of action arose in late October, 2019, when the plaintiff's first found out that the Defendant could be involved in preparing for the launch of their infringing product. The cause of action also arose when the Plaintiffs learned about the Defendant having filed a lawsuit against the Plaintiffs seeking declaration of non-infringement in the City Civil Court of Hyderabad, concerning Chlorantraniliprole. The cause of action for the Rose when the Plaintiffs were served with a caveat petition filed by the Defendant before this Hon'ble Court in anticipation of a lawsuit being filed against it. The plaintiffs submit that there exists a real and reasonable apprehension that the Defendant will soon launch its infringing insecticide products in the market at a commercial scale. The cause of action is the continuing one and will continue to subsist until the Defendant is restrained by the orders of this Hon'ble Court from infringing the suit patent is bearing Nos. 201307 and 213332."

(ii) The filing of a caveat, before this Court, by the defendant in the present proceedings, did not give rise to any cause of action. Caveats are filed by defendants, in the apprehension of prospective plaintiffs instituting proceedings, to ensure that no ex parte ad interim orders of injunction are passed, without hearing them. It does not amount to an admission regarding the existence of a course of action. The filing of the caveat, in the present case, was based on a clear, real and reasonable apprehension, of the plaintiffs attempting to obtain an ex parte ad interim injunction against the defendant.

(iii) The filing of OS 867/2019, before the City Civil Court, Hyderabad, too, did not give rise to a cause of action. Reference was invited to the date-to-date proceedings before the learned City Civil Court, Hyderabad. The plaintiffs were demurring from appearing before the City Civil Court Hyderabad, and had moved this Court by way of the present proceedings, which were in the nature of a counterblast.

(iv) The submission that the plaintiffs knew that the defendant could be involved in alleged infringement, too, did not give rise to any cause of action.

(v) The filing of a patent application, by the defendant, also did not give rise to any cause of action, as this was a legitimate activity, permissible under the Patents Act.

(vi) The allegations in the plaint, seen individually or collectively, therefore, did not make out any "cause of action", sufficient to maintain the plaint. The bundle of facts, as set out in the plaint, did not provide the requisite basis for an apprehension of infringement, on the part of the plaintiffs.

(vii) The averments, in the plaint, did not disclose any clear right to sue, available to the plaintiffs. The validity of the assignment, dated 1st November, 2017, from E.I. Du Pont, on the basis whereof the plaintiffs asserted their right on the suit patents, has also been contested, by the defendant, in the application. Exception has also been taken to the failure, on the part of the plaintiffs, to file, with the suit, a copy of the said assignment document. It is further averred that this assertion, in the plaint, was contrary to Form 16, filed by the plaintiffs before the Indian Patent Office on or around 2nd August, 2018. Recordal of title, in respect of the suit patents, was fraudulently obtained. Such a flawed recordal of title could not confer a right to sue. (These assertions, though contained in the application of the defendant, were never argued by Mr. J. Sai Deepak, learned counsel for the defendant.)

67. Resultantly, contends the application, the suit was liable to be dismissed under Order 7 Rule 11(a) and (d) of the CPC.

68. The plaintiffs have filed a reply, to the aforesaid I.A. 2595/2020, in which it is contended as under:

(i) The plaint clearly averred that

(a) the defendant had filed a lawsuit before the City Civil Court, Hyderabad, against the plaintiffs, for declaration regarding non-infringement in respect of IN 307 and IN 332, as also for a declaration that CTPR was covered by certain prior patents and was, therefore, in the public domain, free for anyone to commercially deal in,

(b) this clearly reveals the commercial interest of the defendant to deal in a commercial CTPR product, which would infringe the suit patents of the plaintiffs,

(c) the defendant had also filed a patent application, before the Indian Patent Office, titled "Improved Process for the Preparation of Anthranilimide Derivatives", which allegedly provided for an improved process for preparation of Chlorantraniliprole, which also evidenced the defendants commercial interest in an infringing CTPR product, and

(d) it was also evidenced, by a third party research report prepared by JM Financial Institutional Securities Ltd., dated 11th June, 2019, that the defendant was entering the agro-chemical business in January, 2019, and was expected to focus on certain products, of which one was Chlorantraniliprole.

These assertions, seen in conjunction with the fact that the defendant had filed a caveat petition, pre-empting the present suit, clearly made out a right, to sue, in the plaintiffs, and disclosed a credible apprehension and threat perception, that, were the defendant not to be restrained by an injunctive order, commercial launch, by the defendant, of the infringing products, was imminent. It could not, therefore, be said that the plaint was devoid of any cause of action.

(ii) The allegation that the present plaint was a counterblast to the suit, preferred by the defendant before the City Civil Court, Hyderabad, was denied.

69. Various other assertions, by way of responses to the corresponding contentions, as contained in the application of the defendant, have been made in the reply of the plaintiffs. However, I do not deem it necessary to make exhaustive reference thereto, for the purposes of deciding the present application.

70. Order VII Rule 11 of the CPC contemplates rejection of the plaint, by the Court, in six different eventualities. Of these, Mr. Sai Deepak seeks to invoke clauses (a) and (d), which deals with situations in which the plaintiff does not disclose the cause of action, and where the suit appears, from the statement in the plaint, to be barred by any law. The invocation of clause (d) is sought to be justified, by Mr. Sai Deepak, on the anvil of the other applications, already disposed of, by me, hereinabove, which seek to contend that the suit, of the plaintiffs, is barred by Order VI Rule 15A, Order VI Rule 16 and Order VII Rule 10, of the CPC. I have already rejected these contentions, hereinabove; per corollary, the reliance, by Mr. Sai Deepak, on clause (d) of Order VII Rule 11, also, stands discountenanced.

71. Apropos clause (1) of Order VII Rule 10, this Court is to examine the plea of the defendant, treating the averments, in the plaint, as correct. The chance of success, of the plaintiff, in prosecuting its case, is entirely irrelevant; what matters is the existence of a cause, amenable to prosecution.10 If the averments in the plaint, treated as correct, do not disclose the cause of action, the plaint has to be rejected; else, a like fate must visit the application of the defendant. Viewed thus, it is apparent that the averments, in the plaint, clearly make out a cause of action, entitling the plaintiffs to sue. The plaintiffs claim to be holders of the patents IN 307 and IN 332. They have cited specific acts, of the defendant, including the averments, of the defendant, in OS 867/2019, pending before the City Civil Court at Hyderabad, as justifying a reasonable apprehension, on the plaintiff's part, that the defendant would launch products, infringing the aforesaid patents IN 307 and IN 332, in the market. The facts, justifying this apprehension, that set out in para 36 of the plaint, which may be reproduced, for ready reference, thus:

"36. The Plaintiffs have reasonable apprehension that the Defendant is working towards developing an infringing CTRR product for commercial launch in India, including within the jurisdiction of this Hon'ble Court. The following factors have led to the Plaintiffs to form such an apprehension:

i. The Plaintiffs have recently learnt of a suit having been filed by the Defendant herein before the City Civil Court in Hyderabad for a declaration seeking non-infringement in respect of IN'307 and IN'332. Additionally, the Defendant herein in the said suit has also sought a declaration that CTPR is covered by the written description of certain prior patents and is therefore in the public domain, free for anyone to commercially deal in.

The Plaintiff No. 2 received a letter from the Defendant's counsel on October 22, 2019 enclosing an unsigned copy of the plaint along with interim application as filed by the Defendant before the City Civil Court of Hyderabad. The Plaintiff No. 2's registered agent received the said letter on October 17, 2019, but the same was only received by the Plaintiff No. 2 on October 22, 2019.

Further, the said plaint was not accompanied by any documents and the covering letter stated that the said matter was posted for October 21, 2019.

It would pertinent to note that at paragraphs 12 and 44 of the said plaint, the Defendant has stated the following:

"12....The Plaintiff herein has after years of rigorous research and development and testing, developed a procedure for the manufacture of Chlorantraniliprole. The Plaintiff is in the process of ensuring that all appropriate procedures and trials are completed towards securing the necessary regulatory approvals and believe that there is no legal bar or hindrance towards either grant of such approval or manufacture and sale of such product."

"44....Plaintiff which is seeking to manufacture and sell Chlorantraniliprole formulation..."

The above pleadings make it apparent that the Defendants are planning to commercially launch an infringing CTPR product in the near future.

ii. The Defendants have in fact also filed a patent application before the Indian Patent Office, numbered 201841015241, and titled "IMPROVED PROCESS FOR THE PREPARATION OF ANTHRANILIMIDE DERIVATIVES", which provides for an allegedly improved process for preparation of Chlorantraniliprole.

The fact that the Defendant has filed for such a patent application makes it evident that it is commercially interested in Chlorantraniliprole (CTPR). It would be pertinent to mention herein that even if the Defendant uses this allegedly novel process to manufacture CTPR, the Defendant's activities would still amount to infringement of the product patent IN'307, which specifically claims CTPR in Claim 8.

iii. A third party research report prepared by JM Financial Institutional Securities Ltd. (a leading investment banking firm in India) dated June 11, 2019, which reports about the Defendant's recent foray into the agro-chemical business in January 2019. It further states that the Defendant is expected to focus on certain products, one of which is Chlorantraniliprole.

This further strengthens the apprehension of the Plaintiffs that the Defendants are expected to commercially launch an infringing CTPR product in the market.

iv. Moreover, the Defendant's Annual Report for 2018-19 also states that the Defendant is in the process of contrasting two manufacturing units (in Nellore) for Crop Health Sciences: Chemical and Formulations.

This along with the JM Financial Research report (mentioned above in iii) makes it evident that the Defendant have expressed their intention to manufacture and commercially deal in CTPR products.

v. The Plaintiffs have been served with a copy of a caveat petition filed by the Defendant before this Hon'ble Court, which also makes it evident that the Defendant is commercially interested in an infringing CTPR product."

(Emphasis in original)

72. These facts, as averred the plaint, if true, clearly disclose a right, in the plaintiffs, to sue, and a cause of action, justifying the institution of the plaint. The merits of the plaintiff's case play no part in the consideration, by this Court, of the application of the defendant under Order VII Rule 11 of the CPC. Clearly, however, no case, for rejection of the plaint, under the said provision, can be said to be made out.

Conclusion

73. Resultantly,

(i) I.A. 5209/2020 is allowed, and the amended plaint and Statement of Truth, filed therewith, are taken on record, to be read in place of the originally filed plaint and Statement of Truth,

(ii) in view thereof, I.A. 4274/2020 is disposed of as having become infructuous, and

(iii) I.A. 2594/2020, I.A. 2595/2020 and I.A. 2596/2020 are dismissed.

74. I.A. 15352/2019, filed by the plaintiffs under Order XXXIX Rules 1 and 2, CPC, is directed to be listed, for hearing, on 20th July, 2020.


1Usha Balashaheb Swami v. Kiran Appaso Swami, MANU/SC/7318/2007 : (2007) 5 SCC 602
2Cropper v. Smith, (1884) 26 Ch D 700 (CA)
3Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : (1974) 2 SCC 393; Arundhati Mishra v. Sri Ram Charitra Pandey, MANU/SC/0610/1994 : (1994) 2 SCC 29
4Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, MANU/SC/0002/1957 : AIR 1957 SC 363
5Jai Jai Ram Manohar Lal v. National Building Material Supply, MANU/SC/0016/1969 : (1969) 1 SCC 869
6Haridas Aildas Thadani v. Godrej Rustom Kermani, MANU/SC/0019/1981 : (1984) 1 SCC 668
7B.K. Narayana Pillai v. Parameswaran Pillai, MANU/SC/0775/1999 : (2000) 1 SCC 712
8Ma Shwe Mya v. Maung Mo Hnaung, MANU/PR/0130/1921 : AIR 1922 PC 249
9Bhagwat Sharan v. Purshottam, MANU/SC/0354/2020 : 2020 (3) CTC 111
10Exphar SA v. Eupharma Laboratories; Mayar (HK) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, MANU/SC/8083/2006 : AIR 2006 SC 1828


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