* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd September, 2014.
+ Review Petition No.316/2014 in FAO(OS) No.144/2014
TEVA PHARMACEUTICAL
INDUSTRIES LTD & ORS ..... Appellants
Through: Mr. Parag P. Tripathi, Sr. Adv. with
Mr. Praveen Anand, Mr. Kunal Bahri,
Mr. Nischal Anand and Mr. Aman
Taneja, Advs.
Versus
NATCO PHARMA LIMITED .... Respondent/Review Applicant
Through: Mr. T. K. Ganju, Sr. Adv. & Mr.
Chetan Sharma, Sr. Adv. with Mrs.
Rajeshwari H., Ms. Sudipa Das Gupta,
Mr. Amit Gupta, Mr. Tahir Abdul
Zabbar & Ms. Aparna Gaur, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The respondent/review applicant, after dismissal in limine on 1st July, 2014 of the SLP(C) No.15602/2014 preferred thereagainst, seeks review of para Nos.9 to 12 of our judgment dated 30th May, 2014 allowing this appeal.
2. The review petition came up before this Court first on 11 th July, 2014, when the senior counsel for the appellant/non-review applicant also appeared and sought time to place on record a copy of the SLP preferred by the R.P. No.316/2014 in FAO(OS) No.144/2014 Page 1 of 15 respondent/review applicant to the Supreme Court against the judgment of which review is sought. While allowing the same, opportunity was also given to the appellant/non-review applicant to file reply, if any to the review application. A reply has been filed and the counsels have addressed lengthy arguments, after hearing which, we reserved orders.
3. This Court, during the hearing of the appeal had enquired from the senior counsel for the respondent (as recorded in para 9 of the judgment), whether any permission was required for export of the drugs, the process of manufacture whereof is the subject matter of these proceedings and whether such permission had been obtained.
4. The senior counsel for the respondent in reply to the aforesaid, had answered in the affirmative and further stated that as of then (i.e. the date of hearing 15th May,2014), the respondent did not have the permission for export to the United States of America (USA), as recorded in para 10 of the judgment dated 30th May, 2014.
5. The respondent/review applicant in the review application states that the true legal and factual position is that there is no requirement of any permission for export; import into the USA is a matter of applicable US laws and is generally permitted upon U.S. Food and Drug Administration R.P. No.316/2014 in FAO(OS) No.144/2014 Page 2 of 15 approval of the product for the commercial sale within the United States or under certain other circumstances. It is further informed that as on the date of filing of the review application, the U.S. Food and Drug Administration had not approved any application of the respondent/review applicant to allow commercial sale of subject product within United States, though the respondent review applicant is awaiting approval. It is yet further informed that Rule 84 read with Form 25 of the Drugs and Cosmetics Rules, 1945 which deals with „manufacture and sale‟, poses no limitation on export of the product.
6. The senior counsel appearing for the respondent/review applicant in the review application also drew our attention in this regard to the approval dated 1st March, 2007 accorded to the respondent/review applicant for manufacturing the subject product as an additional item under the Drug License already issued to the respondent/review applicant and a copy of which is filed along with the review application and on the basis thereof, it is argued that the same also entitles the respondent/review applicant to export the subject product with only the requirement to furnish information after completion of each export.
R.P. No.316/2014 in FAO(OS) No.144/2014 Page 3 of 15
7. We had similarly during the hearing of the appeal enquired from the senior counsel for the respondent (as recorded in para 11 of the judgment dated 30th May, 2014), whether the permission from the Drug Controller was required qua a product only or also qua the process of manufacture of the product and whether the respondent had such permissions.
8. The senior counsel for the respondent had on instructions informed that permission from the Drug Controller is required for the process also and the respondent as on that date (i.e. 15th May, 2014) had no such permission either, as recorded in para 12 of the judgment dated 30th May, 2014.
9. The respondent/review applicant in the review application states that the true legal and factual position is that no such permission for the process is required from the Drug Controller of India. It is further informed that the respondent/review applicant has permission under Form 25 for the subject product and manufacture thereof and the same is sufficient for the respondent/review applicant to manufacture the product. It is reiterated that the U.S. Food and Drug Administration had till the filing of the review application not approved any application allowing importation of the subject product into the United States.
R.P. No.316/2014 in FAO(OS) No.144/2014 Page 4 of 15
10. The senior counsel for the respondent/review applicant during the hearing of the review application also drew our attention to Rule 84 read with Form 25 of the Drugs and Cosmetics Rules, 1945 to contend that no limitation on use of different process for manufacture of the product has been placed.
11. Though the review application also mentions an error having crept in para 19 of the judgment dated 30th May, 2014 but the senior counsel for the respondent / review applicant during the hearing stated that the respondent / review applicant having preferred an SLP against the judgment and the same having been dismissed with the observation that "no ground for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India", he is not pressing for review thereof.
12. The senior counsel for the respondent/review applicant has contended that the reply given by the counsel/senior counsel for the respondent to the queries raised by the Court during the hearing of the appeal, on the spur of the moment, cannot bind the respondent/review applicant particularly when the same relates to the factual/legal position and of which the counsel/senior counsel for the respondent was not expected to be aware, since the appeal was concerned only with the aspect of territorial jurisdiction of this Court. R.P. No.316/2014 in FAO(OS) No.144/2014 Page 5 of 15 Reliance in this regard is placed on Swami Krishnanand Govindanand Vs. M.D. Oswal Hosiery (Regd.) (2002) 3 SCC 39 in para 3 whereof it is observed that though there can be no doubt that admission of a party is a relevant material but the statement made by the counsel of a party across the Bar, cannot be treated as an admission.
We may however notice that the Supreme Court in the said case was concerned with a claim by the landlord for eviction of tenant on the ground of bona fide requirement of the tenancy premises, under the provisions of the Delhi Rent Control Act, 1958 and the law in which regard is that the Rent Controller can pass an order of eviction only upon being satisfied that the elements / ingredients only on the proof whereof, the landlord is entitled to an order of eviction, exist.
13. The senior counsel for the respondent/review applicant has also referred to Central Council for Research in Ayurveda & Siddha Vs. Dr. K. Santhakumari (2001) 5 SCC 60 in para 13 whereof, referring to Uptron India Ltd. Vs. Shammi Bhan (1998) 6 SCC 538, it was held that a wrong concession on question of law made by a counsel is not binding on his client and such concession cannot constitute a just ground for a binding precedent. R.P. No.316/2014 in FAO(OS) No.144/2014 Page 6 of 15
14. We have also been taken through Board of Control for Cricket in India Vs. Netaji Cricket Club (2005) 4 SCC 741, in para 90 whereof it has been held that the words "sufficient reason" in Order 47 Rule 1 of the Code of Civil Procedure are wide enough to include a misconception of fact or law by a Court or even an Advocate.
15. We had during the hearing of the review application enquired from the senior counsel for the respondent/review applicant, as to what is the prejudice caused to the respondent / review applicant from the recordings aforesaid in para Nos.9 to 12 of the judgment dated 30 th May, 2014 and as to what is the need for the respondent/review applicant to seek this review, inasmuch as the respondent/review applicant, during the hearing of the suit from which this appeal arises can contend as to what the true legal position on the aforesaid aspects is.
16. The senior counsel for the respondent/review applicant replied that review is necessary inasmuch as the replies given by the counsel for the respondent to the Court‟s queries during the hearing of the appeal have turned out to be not correct and the record needs to be put straight and so as not to be accused of having made a wrong statement to the Court and having not taken any step to point out the mistake and lastly because the R.P. No.316/2014 in FAO(OS) No.144/2014 Page 7 of 15 appellant/non-review applicant, in the hearing of the suit particularly the application for interim relief and contempt etc., is attempting to take advantage of the aforesaid mistakes on the part of the respondent/ review applicant in replying to the Court‟s queries.
17. The senior counsel for the respondent/review applicant lastly also contended that CS(OS) No.1708/2007 filed by the appellant/non-review applicant against the respondent/review applicant prior to the institution of the suit from which this appeal arose (and referred to in para 3(iii) of our judgment dated 30th May, 2014) stands dismissed on 20th August, 2014 and which fact was also concealed by the appellant/non-review applicant from this Court on the last date of hearing. A copy of the order of dismissal thereof owing to the appellant/plaintiff/non-review applicant having not led any evidence, was handed over.
We may however notice that the last date of hearing in this review application was 12th August, 2014 and thus the appellant/non-review applicant cannot be accused of non-disclosure of dismissal on 20th August, 2014 of the previously instituted suit on the last date.
18. The senior counsel who had argued the appeal on behalf of the respondent/review applicant and who also appeared contended that the filing R.P. No.316/2014 in FAO(OS) No.144/2014 Page 8 of 15 of the earlier suit as well as of this suit from which this appeal arose is mala fide and an attempt to prevent the respondent/review applicant from marketing the subject drug in USA, even though the patent of the appellant/ non-review applicant of the said drug in USA has lapsed and the appellant/ non-review applicant has no right to so prevent the respondent/review applicant.
19. The senior counsel for the appellant/non-review applicant has argued:
(i) that the dismissal of CS(OS) No.1708/2007 earlier filed by the appellant / non-review applicant is inconsequential and rather advantageous to the appellant / non-review applicant inasmuch as along therewith the counter-claim of the respondent / review applicant challenging the patent in India of the appellant / non-review applicant has also been dismissed and upon which dismissal the challenge by the respondent/review applicant to the patent in India of the appellant/non-review applicant of such drug does not survive;
(ii) that the respondent/review applicant has indulged in fraud/ concealment and the review application cannot be entertained on this ground. Attention is invited to para 8 of the judgment dated 30 th May, 2014 recording the reply of the senior counsel for the respondent / R.P. No.316/2014 in FAO(OS) No.144/2014 Page 9 of 15 review applicant to yet another Court query inter alia to the effect that the respondent / review applicant till then i.e. at the time of hearing on 15th May, 2014 had not started manufacturing the subject product. It is argued that the appellant / non-review applicant has subsequently learnt that the respondent / review applicant had already commenced not only manufacturing but also exporting the subject product since September, 2013, to countries other than America; even in the review application, a true disclosure in this regard has not been made;
(iii) that even if it were to be believed that on the date of the hearing of the appeal, wrong answers were given owing to lack of instructions (though this is also disputed and it is argued that the representative of the respondent / review applicant at the time of hearing of the appeal was present in the Court, as on the date of hearing of the review application), the respondent / review applicant in the fifteen days interregnum between the conclusion of the hearing of the appeal and the pronouncement of the judgment, ought to have informed the Court of the correct position;
(iv) that the respondent / review applicant even after pronouncement of the judgment on 30th May, 2014 and till the filing and dismissal of R.P. No.316/2014 in FAO(OS) No.144/2014 Page 10 of 15 the SLP on 1st July, 2014 preferred thereagainst, did not inform this Court of the mistake, if any in answering to the Court‟s queries;
(v) that the respondent / review applicant in the SLP before the Supreme Court also did not state that any such mistakes had occurred in replying to the Court‟s queries;
(vi) that the alleged „wrong statements / replies‟ made were not innocent but consciously made to deceive the Court and to keep the appellant / non-review applicant in the dark of the respondent / review applicant having already commenced exports to countries other than America;
(vii) that such design of the respondent / review applicant nearly succeeded, inasmuch as this Court also, during the hearing of the appeal and on the basis of the replies to the Court‟s queries of the respondent / review applicant, had put to the counsel for the appellant / non-review applicant, as to what survived in the suit and as recorded in para 13 of the judgment dated 30th May, 2014;
(viii) that it is thus obvious that the respondent / review applicant was taking a chance in the Supreme Court and applied for such review only when that remained unsuccessful. Attention is invited to R.P. No.316/2014 in FAO(OS) No.144/2014 Page 11 of 15 Annexure-A to the reply to the review application containing the extract from the pleadings, in which also it is argued that the respondent / review applicant had designedly practiced concealment;
(ix) that principle of uberrima fides applies to all parties irrespective of whether they are plaintiff or the defendant. Attention is invited to the reply dated 2nd August, 2014 filed by the respondent / review applicant to the CCP No.95/2014 in the suit from which this appeal arose and in para 4(a) whereof, the respondent / review applicant has in addition to stating that the replies of the counsel for the respondent / review applicant as recorded in para Nos.9 to 12 of the judgment dated 30th May, 2014 were erroneous, has also pleaded the same to be a case of erroneous recording; it is thus argued that even there a false plea is taken;
(x) attention is invited to the documents filed by the appellant/non- review applicant along with the aforesaid CCP to show exports of the subject product by the respondent / review applicant since September, 2013 of approximately Rs.27 crores and it is contended that it is impossible that the representative present in the Court was not aware of such voluminous exports which ordinarily creates a buzz in the R.P. No.316/2014 in FAO(OS) No.144/2014 Page 12 of 15 company;
(xi) that the respondent/review applicant till date has not disclosed the process adopted by it for manufacture of the product which is being exported to other countries and permission for export whereof to USA has been applied for;
(xii) reliance is placed on para Nos.5 & 6 of S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1 and para Nos.20 to 25 of Oswal Fats and Oils Limited Vs. Additional Commissioner (Administration), Bareilly (2010) 4 SCC 728.
20. The senior counsel for the respondent/review applicant in rejoinder stated that the CCP aforesaid filed by the appellant/non-review applicant has since been dismissed as not pressed.
21. We have, considering it our duty to duly record the contentions made before us and further finding the lis to be a hotly contested one between two pharma giants, have made a detailed recording of the contentions made. We may however highlight that we, in dealing with the review application, are exercising review and not original or appellate jurisdiction. For this reason only, we do not feel the need to give an opportunity to the respondent/ review applicant to file rejoinder to the reply of the appellant/non-review R.P. No.316/2014 in FAO(OS) No.144/2014 Page 13 of 15 applicant accusing the respondent/review applicant of concealment and fraud as aforesaid recorded, nor we do intend to adjudicate the same nor are required to adjudicate the said allegations. The question, whether the respondent/review applicant designedly made wrong statements to derive any advantage thereof, if at all arising and if relevant for adjudication, whether of the suit or at any stage thereof, have to be decided by the Suit Court and not by us. Without reaching a conclusive finding of the respondent/review applicant having practiced such a design, the review sought cannot be dismissed merely on that ground.
22. Else, as the aforesaid would show, there is no opposition to the review which is merely in the nature of informing the Court that the information given to the Court during the hearing of the appeal and as recorded in the judgment dated 30th May, 2014 disposing of the appeal, was incorrect. The senior counsel for the respondent/review applicant expressly stated that the respondent/review applicant is not asking for the final outcome in the judgment dated 30th May, 2014 to be reviewed. We are thus not even required to consider whether the reply to the Court‟s queries given during the hearing of the appeal was correct or the reply now given is correct. R.P. No.316/2014 in FAO(OS) No.144/2014 Page 14 of 15
23. We accordingly dispose of this review application observing that the statements now made in the review application and hearing thereof, re- replying to the Court‟s queries made during the hearing of the appeal, are taken on record. The same shall however be without prejudice to any right which may have accrued to the appellant/non-review applicant including of establishing/proving/arguing that the respondent/review applicant had designedly made wrong statements at the hearing of the appeal, to ward off any adverse order and without also making the appellant/non-review applicant bound by the re-replies now given by the respondent/review applicant and/or without accepting the correctness thereof either.
24. We however deem it appropriate to burden the respondent/review applicant with costs of Rs.25,000/- payable to the appellant/plaintiff/non- review applicant.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE SEPTEMBER 22, 2014 bs R.P. No.316/2014 in FAO(OS) No.144/2014 Page 15 of 15