Tenxc Wireless Inc. & Anr. vs Andrew Llc & Ors.
2010 Latest Caselaw 5828 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Date of hearing : 16th December, 2010
                        Date of decision:22nd December, 2010
+      FAO (OS) No.697/2010 &
       CM Nos.22308-09/2010 & CM No.22578/2010

       TENXC WIRELESS INC. & ANR. .....Appellants
                .....Through    Mr. Saikrishna Rajagopal
                              Advocate with Mr. J. Sai
                              Deepak, Advocate.
                Versus

       ANDREW LLC & ORS.                  .....Respondents
           ......Through     Mr. Dushyant Dave, Senior
                         Advocate with Ms. Gayatri Roy,
                         Mr. Manu Krishnan, Advocates for
                         Respondent No.2.
                         Mr. Shailesh K. Kapoor, Advocate
                         for Respondent No.3.
       CORAM:
*      HON'BLE MR. JUSTICE VIKRAMAJIT SEN
       HON'BLE MR. JUSTICE G.P.MITTAL

       1. Whether reporters of local papers may be
          allowed to see the Order?                  No
       2. To be referred to the Reporter or not?     Yes
       3. Whether the Order should be reported
          in the Digest?                             Yes


G.P.MITTAL, J.

1. The Appellants assail the order dated 30th November,

2010 passed by the learned Single Judge whereby the ex-

parte injunction granted by the learned Single Judge vide

order dated 4th October, 2010 was suspended/vacated and

the case was fixed for completion of the pleadings of the

parties with direction to the Respondents to file their

written statements within 30 days from the date of the

said order.

2. A suit for permanent injunction restraining infringement

of registered Indian Patent Number 240893 for an

invention entitled "Asymmetrical Beams for Spectrum

Efficiency", delivery up, rendition of account of profits

and damages was filed against Respondent No.1. The

matter came up for hearing on the application under

Order XXXIX Rules 1 & 2 of the Code of Civil Procedure

(Code). On 4th October, 2010, the learned Single Judge

(Respondents No.2 & 3 herein) as it was represented on

behalf of the Appellants that Respondent No.1 was in the

process of selling its impugned product to Reliance

Communication and Tata Teleservices Respondent Nos. 2

& 3 respectively. On information of an ex-parte injunction

order passed against it, Respondent No.1 preferred an

LPA which came to be disposed of by this Court on

15.11.2010. The case was remanded for compliance of

provisions of Order XXXIX as laid down in the Code as

well as clarified in A.Venkatasubbiah Naidu vs.

S.Chellappan (2000) 7 SCC 695.

3. An application under Order XXXIX Rule 4 of the Code was

moved by the Respondent No.1 which came to be

disposed of by the impugned order. The grievance of the

Appellants is that the order of injunction was

suspended/vacated by the learned Single Judge mainly on

the ground that as per the case of the Appellants the

Patent Certificate by Patent Office had been given to the

Appellants on 9.06.2010 yet the Appellants had

deliberately not produced the specification in respect of

which the product of the Appellants had been patented in

as much as the Appellants instead of filing the documents

annexed to the Patent Certificate dated 9.06.2010 had

filed the documents in respect of the Patent which had

been downloaded from the site of the Patent Office. It

had also been alleged in the application under Order

XXXIX Rule 4 of the Code that the Appellants had

dealings with Respondent No.1 as he had entered into

Agreement for using Respondent No.1's technology called

"Remote Electrical Tilt" and thus the Appellants'

Company was aware that the Respondent No.1 Company

and its subsidiary had been using the impugned product

for the last more than two years before filing of the suit.

4. Mr. Saikrishna Rajagopal learned counsel for the

Appellants has tried to explain that Indian Patent Office

takes anywhere between 20-40 days to supply certified

copy of the granted Patent Specification and therefore, it

was not feasible for Appellant No.1 to await receipt of

certified copy of granted specification because it was

praying for an urgent ex-parte ad interim order. He also

tried to point out as to how Appellant No.1 Canadian

Attorneys had instructed the Indian Patent Agent to

urgently obtain and transfer certified copy of the

complete specification as granted. He explained that no

information was withheld nor there was any question of

any forgery or making false or misleading statement.

5. It has been submitted that the specification filed by the

Appellants along with the Plaint was never represented as

certified copy of the granted specification and the source

from which it was obtained was prominently mentioned

on the document itself. It is also the case of the

Appellants that comparison of the corresponding claims

between the complete specification downloaded from the

official website of Indian Patent Office and the complete

specification as granted was also made in the Affidavit of

Mr. Rajiv Pancholy filed on 28.09.2010 (not considered by

the learned Single Judge) with a view to satisfy the

learned Single Judge that the Appellants had not gained

any undue benefit by filing the downloaded specification

as against the certified copy of the granted specification.

6. Regarding impleadment of Reliance Communication, it has

been pointed out that status quo order was not dictated

by the learned Single Judge in the open Court and

therefore the Appellants could not point out to the

learned Single Judge that there was no pleading in the

Suit against Respondent No.2. It has been submitted that

impleadment of Reliance Communication in the Suit was

not pursuant to any pleading by the Appellants and the

Appellants in the circumstances had no opportunity to

point out the error in the order.

7. Admittedly, notice of the application under Order XXXIX

Rule 4 of the Code was not issued to the Appellants so as

to get its response thereon. Respondent No.1 who was

aggrieved by the ex-parte injunction order has admittedly

neither filed the written statement nor any reply to the

application under Order XXXIX Rules 1 & 2 of the Code.

8. Rule 4 of Order XXXIX of the Code empowers the Court to

vacate an order of injunction if the party has made a false

or misleading statement in relation to a material

particular and the injunction was granted without giving

notice to the opposite party.

9. The Appellants have a grievance against the impugned

order mainly on the ground that the Appellants had not

been afforded the opportunity of filing the written

response to the Application under Order XXXIX Rule 4 of

the Code moved by Respondent No.1 nor the Affidavit

filed by Mr. Rajiv Pancholy was considered. If the

learned Single Judge would have had the material, it

would have been established that :-

a. The Appellants have not knowingly presented filtered and selective information.

             b.    The    Appellants    have   not
          suppressed     or   concealed    material
          particulars.
            c.    The Appellants have not fabricated
          any document.
            d.     The Appellants have not mis-stated
          any facts.
             e.    There is no material difference in

the principal independent claims in both versions of the complete specification; and consequently f. The Appellants have not gained any undue benefit by filing the complete specification downloaded from the official website of the Indian Patent Office.

10. Mr. Dushyant Dave, learned senior counsel for the

Respondents, however, supports the impugned order on

the ground that the Court is not to go into the merits of

the case and once a party is found to have made a false or

misleading statement in relation to a material particular

an injunction order is bound to be vacated.

11. In the Application under Order XXXIX Rule 4 of the Code

very serious allegations had been leveled against the

Appellants. It was highly unfair to have condemned the

Appellants and accuse it of making false statement or

putting up filtered and selective information without

obtaining a written response from the Appellants. Since

written response of the Appellants of the Application filed

under Order XXXIX Rule 4 of the Code is not on record,

we are unable to appreciate the respective contentions

raised on behalf of the parties and the findings reached

by the learned Single Judge.

12. The Hon'ble Supreme Court has clarified that the

discretion exercised by the lower Court should not be

interfered with by the Appellate Court merely because it

favours a differently plausible view. It has been

vehemently contended before us by Mr Sai Krishna,

Advocate, that despite fervent requests made to the

Learned Single Judge to permit the Appellant/Plaintiff to

file a Reply to the subject Application under Order XXXIX

Rule 4, this request was ignored. Mr Dave, learned

Senior Counsel for the Defendant/Respondent has equally

vehemently submitted that such a request was not voiced

by the Appellant on any of the days when the Application

was listed for hearing. Unfortunately, record of the

proceedings are reticent on this point. Since the

pervading perception of the Learned Single Judge was

that the Plaintiff had knowingly made false or misleading

statements in relation to material particulars, the Plaintiff

should have been afforded an opportunity to controvert

the Defendant's statements. We should not be

understood to find fault with the speedy dispatch with

which the Learned Single Judge had decided the

Application under Order XXXIX Rule 4. This is in fact

what law requires. However, the interest of justice may

be undermined if an opportunity to controvert or respond

to vital facts is not given. It is for this reason that we have

taken the present view.

13. Even if, the learned Single Judge had preferred to keep

the application under Order XXXIX Rules 1 & 2 of the

Code pending, it was essential to obtain a response from

the Appellants in respect of serious allegations. In this

view of the matter, the impugned order cannot be

sustained. The same is accordingly set aside. The

learned Single Judge may decide the application under

Order XXXIX Rule 4 of the Code afresh after giving the

opportunity as aforesaid. No costs.

14. Pending applications also stand disposed of accordingly.

(G.P. MITTAL) JUDGE

(VIKRAMAJIT SEN) JUDGE

DECEMBER 22, 2010 vk