M/S Avl Electric Vehicles Private ... vs The State Of West Bengal & Ors
2023 Latest Caselaw 5451 Cal

23.08.2023
rc/ct.no.10
Item No.165


                             WPA No. 12992 of 2023
                     M/s AVL Electric Vehicles Private Limited
                                      Versus
                         The State of West Bengal & Ors.


                    Mr. Sanjib Dutta                    ...for the petitioner

                    Mr. Gunjan Sinha @ Kanishk Sinha
                                        ....respondent No.6 in person

Mr. Pantu Deb Roy Mr. Pannalal Bandopadhyay ...for the State

Heard learned counsels for the parties.

The Memos issued on January 13, 2022 and July

13, 2022 are assailed in the writ petition.

Placing reliance on the affidavit submitted by him,

the 6th respondent submits that he entered into an

agreement with AVL Electric Vehicles represented by its

proprietor Mr. Amit Makhija on July 21, 2019.

Subsequently, the proprietorship firm has been converted

into M/s AVL Electric Vehicles Pvt. Ltd., a company

registered under the Companies Act, 2013 but the

signatory of the said company is the same person being

Mr. Amit Makhija. Therefore, the petitioner cannot ignore

the agreement merely on account of change of status of the

company.

The 6th respondent further submits that an

agreement entered into under Section 108 of the Patents

Act can be adjudicated by the Civil Court and not by this

Court in exercising extra ordinary jurisdiction under

Article 226 of the Constitution of India. Secondly, he has

patent over the technology itself and not merely over any

kind of battery.

Learned counsel for the petitioner submits that the

earlier proprietorship firm being converted into the present

petitioner's firm, the earlier firm does not exist at present.

Be that as it may, it prima facie appears from the

agreement referred to by the 6th respondent that the

agreement is in respect of the patent held by him in

respect of fuel cell system and an efficient eco friendly

vehicle mounted with fuel cell system. In the present writ

petition, the petitioner submits that the battery

manufactured by the petitioner is lead cell battery which is

distinct and different from the battery manufactured by

the patentee, i.e., the 6th respondent herein.

Therefore the agreement entered into by and

between the parties is not relevant in the context of the

present writ petition.

The memos issued on 13th January, 2022 and 13th

July, 2022 have been assailed by the writ petitioner in the

present writ petition. The memo dated 13th January, 2022

restricts registration of battery operated eco-friendly e-

rickshaw in terms of the order passed in Title Suit No.27 of

2018 by learned Additional District Judge, 13th Court,

Alipore on 24th February, 2020. The said order restrains

the authority from registering the battery operated eco-

friendly e-rickshaw till disposal of the suit.

The memo dated 13th July, 2022 allows registration

of e-rickshaws manufactured by M/s. Mahindra &

Mahindra Ltd.

It is submitted on behalf of the petitioner that the

battery manufactured by the petitioner is lead cell battery

which is distinct and different from the battery

manufactured by the plaintiff in the title suit.

A co-ordinate Bench of this Court, in an order

passed on 16th February, 2022 in WPA 2070 of 2022, has

dealt with a similar issue and has directed the Transport

Directorate, Government of West Bengal to instruct the

concerned regional transport offices to grant registration to

the e-vehicles manufactured by the petitioner therein

subject to the said vehicles being different and distinct

from the category forming the subject matter of the title

suit.

The petitioner claims to be similarly circumstanced

with the petitioner in the earlier writ petition since the

battery manufactured by them is distinct and different

from that of the battery which is the subject matter of the

title suit.

The petitioner further submit that Rule 126 of the

Central Motor Vehicles Rules, 1989 has been complied

with by them.

Learned counsel for the 6th respondent seeks an

order in terms of the order passed by the co-ordinate

bench on 18th February, 2022 in modifying the earlier

order passed on 16th February, 2022. The order passed on

16th February, 2022 was modified to the extent that the

registering authority shall be at liberty to consider all the

relevant materials with regard to the pending proceedings

in Title Suit No.27 of 2018 at the time of registration of the

petitioner's e-vehicles.

The petitioner conceeds to an order being passed in

terms of the modified order passed by the co-ordinate

Bench.

Learned counsel for the 6th respondent draws the

attention of this Court to a judgment passed by a Division

Bench of this Court on 2nd May, 2023 in FMA 623 of 2022

wherein the Hon'ble Division Bench has deprecated an

application for special leave to appeal under Section 96 of

the Code of Civil Procedure by the petitioner therein on the

ground that the petitioner filed an application before the

trial court under Order I Rule 10 of the Code for being

added as a party respondent therein. The petitioner chose

not to pursue the said application and approached the

Hon'ble Division Bench under Section 96 of the Code. In

the judgment under reference the Hon'ble Division Bench

held that the appropriate course of action would be to

pursue the application already made in Order I Rule 10 of

the Civil Procedure Code before the trial Court. The ratio of

the said judgment can be distinguished from the facts and

circumstances of the present case wherein the petitioner

has not applied before the learned trial Court for being

added as a party therein.

In view of the above, the writ petition is disposed of

directing the Director, Transport Directorate, Government

of West Bengal, being the 3rd respondent herein, to issue

necessary direction upon the concerned regional transport

offices to grant registration to the e-vehicles manufactured

by the petitioner subject to the said vehicles being different

and distinct from the category forming subject matter of

the title suit pending before the learned Additional District

Judge, 13th Court, Alipore and also subject to compliance

with Rule 126 of the Central Motor Vehicles Rules, 1989

and all other formalities prescribed under the Act/Rules by

the petitioner and also upon consideration of relevant

documents to be placed by the petitioners before the

authority. The registering authority shall be at liberty to

consider all relevant material regarding the pending

proceedings in the title suit No.27 of 2018 at the time of

registration of the petitioner's e-vehicles.

The entire exercise should be completed within two

months from the date of communication of this order.

With the above observations and directions this writ

petition being WPA 12992 of 2023 is disposed of.

However, there shall be no order as to costs.

Since no affidavit is invited, the allegations

contained in the petition are deemed not to be admitted.

Urgent certified website copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

(Suvra Ghosh,J)