Novartis A.G. vs Wander Pvt. Ltd.
2010 Latest Caselaw 3694 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     EFAO(OS) No.37/09 & CM Nos14085/09, 6097/10

NOVARTIS A.G.                            .....Appellant through
                                         Mr. P.V. Kapur, Sr. Adv. with
                                         Ms. Binny, Mr. Aman Anand
                                         & Ms. Aparajita A. Rao,
                                         Advs.

                    versus

WANDER PVT. LTD.                         .....Respondent through
                                         Mr.Sudhanshu Batra &
                                         Mr. Bhuwan Gugnani, Advs.

%                         Date of Hearing : August 04, 2010

                          Date of Decision : August 09, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                     No
      2. To be referred to the Reporter or not?           No
      3. Whether the Judgment should be reported
         in the Digest?                                   No

VIKRAMAJIT SEN, J.

1. Although the application, which we propose to decide is

for condonation of delay in the filing of the Appeal, some of

the facts of the dispute need to be narrated. The Appellant

had filed a Suit against the Respondent praying that the latter

be injuncted from using the word „Wander‟ and/or using the

trademark „Triaminic‟, „Triominic‟, „Triatussic‟ or „Wander‟ or

any other deceptively similar marks. A Compromise

Application under Order XXIII Rule 3 of the Code of Civil

Procedure, 1908 (CPC for short) came to be filed between the

parties. One of the terms of the Compromise was that the

Respondent/Defendant would, before 1.8.2004, cease from

using these epithets and would take appropriate steps for an

amendment in its Corporate name. It appears that none of the

names of the drugs/medicines in question have been used as

per the Compromise. The dispute pertains to the alleged

failure to change the corporate name within the period

stipulated in the Compromise. The learned Single Judge

noted that a distributorship and marketing agreement has

admittedly been entered into, and that this fact alone

signifies the satisfaction of the Decree Holder/Appellant that

the Respondent/Judgment Debtor has complied with the

obligation in the Compromise Application. The finding has

been returned that -"Clause 4 as interpreted literally has

admittedly been complied by the judgment debtor. The

contention of senior counsel for decree holder of clause 4

being required to be read as requiring the judgment debtor to

ensure change of name by 1st August, 2004, is not found

tenable". The detailed Judgment analyses all relevant

precedents on the issue of the executability of the Decree.

The learned Single Judge has held that there is no decree for

` 5,00,00,000/- as claimed by the Decree Holder which can be

executed and that the only Decree pertains to relief of

permanent injunction, and that so far as compliance with the

injunction is concerned, this was carried out by the

Respondent Company.

2. It is in this background that the subject application for

condonation of delay must be decided. There is admittedly a

delay of 99 days in filing the Appeal. The reason given is that

the certified copy of the impugned Order was received by the

Appellant on 28.5.2009. After deducting the period spent in

awaiting the certified copy, the period of limitation would

have expired during the Summer Vacation and hence the

Appeal ought to have been filed on the first day of reopening.

The case made out by the Appellant is that it had sought legal

opinion which "was delayed on account of long summer

vacation in the month of June. Subsequently, due to a lapse of

the counsel, the period of limitation for filing the appeal

unfortunately elapsed as the counsel focused on

obtaining/preparing an opinion in the matter since the

Appellant as a foreign company has strict financial and

corporate rules and guidelines that require them to carry out

due diligence especially with regard to legal proceedings".

3. The relevant legal Opinion was initially kept in a sealed

cover as "strict confidentiality" was thought prudent by the

Appellant, which we find lacks any semblance of merit or

justification. Eventually, a copy was ordered to be made

available to the Respondent who has thereafter filed a Reply

to the Application opposing the condonation of delay in filing

the Appeal. The legal opinion was given by a lawyer

practicing in the High Court of Delhi and is dated 26.8.2009,

that is, much after the reopening of the Courts after the

Summer Vacation. No satisfactory explanation is forthcoming

as to why there was such a delay in obtaining this legal

opinion. There is no justification to permit foreign companies

or multinational companies extra latitude for filing appeals

beyond the period prescribed in the Limitation Act, 1963

ostensibly that such action is taken after considerable

consideration. No sufficient cause has been disclosed for

condonation of delay in filing the Appeal.

4. We cannot lose sight of the fact that the Compromise

between the parties has been acted upon and the claim for a

sum of ` 5,00,00,000/- has been raised, that too in execution

proceedings, for a delay of few days which delay has been

occasioned due to the fact that orders from the Court

concerned had to be received to effect the change in the

name of the Respondent Company.

5. We find no justifiable reason for condoning the delay.

Application for condonation of delay is dismissed. Appeal as

well as all the pending applications are also dismissed as

being barred by the principle of limitation.

( VIKRAMAJIT SEN ) JUDGE

( MUKTA GUPTA ) JUDGE August 09, 2010 tp