Tenxc Wireless Inc. & Anr. vs Andrewcomm. Scope Inc.
2010 Latest Caselaw 5437 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+               IA No.15387/2010 in CS(OS) NO.1993/2010

                                              Date of Decision : 30.11.2010

TENXC WIRELESS INC. & ANR.                             ......Plaintiffs
                      Through:                   Mr. Sandeep Sethi, Sr.Adv.
                                                 with      Mr.J.Saikrishna,
                                                 Advocate.

                                       Versus

ANDREWCOMM. SCOPE INC.                ...... Defendant
                    Through : Mr.Shailesh K.Kapoor, Adv.
                    for defendant no.3.
                    Mr. Dushyant Dave, Sr.Adv. with
                    Ms.Gayatri Roy and Mr.Kshitij Sharma,
                    Advs. for the defendant no.1.
                    Mr.G.Umapathy, Adv. for defendant
                    no.2.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

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

V.K. SHALI, J. (oral)

IA No.15387/2010

1.     This order shall dispose of an application bearing IA No.

       15387/2010 filed by defendant no.1 under Order 39 Rule 4

       CPC     for     vacation   of   stay   dated 4.10.2010     passed in

       application bearing IA No.13017/2010, whereby the newly

       impleaded defendant nos. 2 and 3 were directed to maintain

       status quo with regard to the installation of "alleged Bi-Sector




CS(OS) No. 1993/2010                                        Page 1 of 17
        array antennae" as the same is purported to be supplied by

       defendant no.1.

2.     Briefly    stated   the   background   in   which   the    present

       application has been filed is that the plaintiff filed the

       abovementioned suit for permanent injunction restraining the

       infringement of its Patent no.IN240893 for invention titled

       "Asymmetrical Beams for Spectrum Efficiency", delivery up,

       rendition of account of profits and damages against a

       company known as Andrew Comm. Scope having its office in

       1100, Comm. Scope Place SE, Hickory, North Carolina, USA.

       The sum and substance of the allegation contained in the suit

       was that the plaintiff has patented an invention called

       "Asymmetrical Beams for Spectrum Efficiency" which is used

       by a mobile service providers for not only increasing the

       frequency of spectrum, for wireless communication but also

       to make use of the said spectrum optimal. It was alleged in

       the plaint that this invention has been patented on 9.6.2010

       and in the month of August, 2010 they learnt that this patent

       was being infringed by the defendant by providing the

       services of the infringed patent that is "Asymmetrical Beams

       for Spectrum Efficiency" technology to some prospective

       customers in India.

3.     The suit came up for hearing for the first time on 27.9.2010

       when arguments were addressed by Mr.Kaul, learned senior

       counsel for the plaintiff, who pressed for grant of ex parte ad



CS(OS) No. 1993/2010                                   Page 2 of 17
        interim stay in favour of the plaintiff. Since the Court was

       not inclined to grant the stay, the matter was adjourned at

       request to 28.9.2010.     On 28.9.2010, the learned senior

       counsel Mr.N.K.Kaul, again made a brief submission and

       thereafter sought an adjournment and the matter was

       adjourned to 4.10.2010. There were two main considerations

       as to why it was not considered fit to issue an ex parte stay.

       Firstly, the defendant in the case was having an address in

       China (actually there were two cases and the case where

       defendant was having Chinese address only was argued) and

       it was urged in the second case that is the present case facts

       are similar. Secondly, there was complete lack of evidence as

       to how the technology was being transferred or rather pilfered

       by the defendant into India.

4.     By 4.10.2010, the plaintiff filed an affidavit of one Sh.Rajeev

       Pancholy, who had stated in his affidavit that the defendant

       no.1 is providing the patented „Bi-Sector array antennae‟,

       which is infringing the patented invention of the plaintiff to

       Tata Tele Services under the Model No.HBXX- 3817TB- VTM

       which has been imported by the defendants and deployed for

       evaluation with Tata Tele Services. It was also alleged that

       the said prospective buyer Tata Tele Communication intended

       to purchase 3000 antennas valued at around US$ 3 million at

       the current price. On the basis of this affidavit, which was

       considered in the nature of a prima facie evidence, this Court



CS(OS) No. 1993/2010                                  Page 3 of 17
        impleaded Tata Tele Services with their office at Jeevan Bharti

       Tower 1, 10th Floor, 124, Connaught Circus, New Delhi as the

       respondent and directed that the plaintiff shall make

necessary changes in the plaint impleading them as a party

and in the meantime, „status quo‟ shall be maintained by Tata

Tele Services regarding installation of alleged Bi-Sector array

antennae purported to be supplied by defendant no.1.

Provisions of Order 39 Rule 3 CPC were directed to be

complied with within three days and the matter was

adjourned to 1.11.2010.

5. The defendant no.1 learnt about the said ex parte ad interim

order and choose to file an FAO(OS) no. 660/2010 against the

order dated 4.10.2010 which was disposed of by the Division

Bench vide order dated 15.11.2010 remanding the matter

back to the Single Judge directing that provisions of Order 39

CPC and as clarified in Venkatasubbiah Naidu Vs.

S.Chellappan & Ors.'s case (2007) SCC 7 695 be strictly

complied with. After remand of the matter, an application

under Order 39 Rule 4 CPC was filed by the defendant no. 1

on 16.11.2010. The said application was taken up for

hearing on 25.11.2010.

6. The learned senior counsel for the parties were heard.

Although an application bearing IA 15387/2010 has been

filed but neither formal notice has been issued on this

application nor any reply has been filed by the plaintiff to this

application. Similarly, the defendant no.1 who was originally

impleaded as the sole defendant and has been purportedly

aggrieved by the order dated 4.10.2010 has till date chosen

not to file the written statement or the reply to IA

13017/2010 in which an ex parte ad interim stay has been

prayed for by the plaintiff.

7. The point which has been urged by Mr.Dave, learned senior

counsel for defendant no.1 is that the ex parte ad interim stay

dated 4.10.2010 may be suspended on account of the fact

that although the said restraint order has not been passed

against the defendant no.1 but in effect it is causing

irreparable loss and damage to the interest of the plaintiff.

Further, it was contended that the continuation of the

aforesaid ex parte ad interim order can be suspended on

account of the fact that the plaintiff has made false and

misleading statements and suppressed material facts from

the Court. A party who has suppressed material facts,

fabricated documents and mislead the Court ought not be

granted discretionary relief much less a relief by way of an ex

parte ad interim order.

8. In this regard, it was contended by the learned senior counsel

that two of the points which he would like to refer although

there are many more given, in the application are, one that

the plaintiff in its plaint has made the following averments:-

"(a) In paragraph 20 of the plaint, the plaintiffs have inter alia

stated:

"It is stated that in the year 2010, the plaintiff no. 1 entered into a licence agreement with the defendant with respect to use of the defendant's technology called the Remote Electrical Tilt (RET). This proves that the plaintiff no. 1 is an entity which respects the Intellectual Property Rights of the third parties. It is precisely for this reason that the plaintiff no. 1 was shocked to learn in August, 2010, that the defendant herein is engaged in the sale, advertisement and marketing of Bisector Array Antennae, which are identical to the plaintiff no. 1's split-sector antennae/bisector array antennae"

(b) Similarly, in paragraph 31 of the plaint, the plaintiff states that :

"the cause of action in the present suit arose in August, 2010, when the plaintiff no.1 came to know of the infringing acts of the defendant. The cause of action continues to arise every day since the defendant continues to import, sell / offer for sale its infringing, products for use in New Delhi, which incorporate the invention of the plaintiff no.1 protected by the Indian patent IN 240893."

9. It has been contended that the plaintiff has filed the suit on

22.9.2010 while as the Patent Certificate by the Patents office

has been given to the plaintiff on 09.6.2010 and the plaintiff

has deliberately not produced the specifications in respect of

which the product of the plaintiff has been patented. He has

drawn the attention of the Court to the Patent Certificate

dated 09.6.2010 and contended that the documents annexed

to the patent are the records which have been downloaded

from the website of the patent office while as the plaintiff

ought to have filed the documents which were issued to them

by the patent office while granting the patent. Elaborating

this argument further, it was contended by the learned senior

counsel that there has been material variation with regard to

the averments made in the application for grant of patent and

the one which was actually approved by the patent office.

This material variation was shown in comparison as para

19 as under:-

        Claim 19       A        sectorized       cellular   A sub-sector
                       communications           network     Antenna
                       having      a     plurality     of   according to
                       subscribers, comprising:             claim 10,
                       One or more base stations            wherein he
                       each supporting at least one         sector antenna
                       sector; and a sector antenna         being replaced
                       associated with each of the at       has a half
                       least one sector providing a         power beam
                       critical      coverage        area   width of
                       extending      therefrom      and    approximately
                       overlapping         neighbouring     105 degree.
                       sectors in a sector handover
                       zone, at least one said critical
                       coverage area comprising an
                       asymmetrical coverage area

10. The second submission which was made was regarding the

cause of action clause on which the learned counsel for the

defendant no. 1 has stated that the plaintiff has contended

that they learnt about the factum of infringement of their

patented product only in the month of August, 2010 while as

the learned senior counsel drew the attention of the Court to

the various documents downloaded by the plaintiff on

21.7.2010 and annexed along with the documents. It is

contended on the basis of these documents that though the

plaintiff states that the cause of action has accrued on

August, 2010 when he learnt about the violation, which is

factually wrong.

11. Another contention of the learned senior counsel for the

defendant no. 1 was that the plaintiff had been, of his own

saying, dealing with the defendant and it had entered into an

agreement for using the defendants‟ technology called as

„Remote Electrical Tilt" and thereby the plaintiff company

knew that the defendant company and its subsidiary had

been using the impugned product for more than two years

before filing of the present suit. It is also contended that the

subsidiary company which is dealing with the „bi sector

antenna‟ is known as "ANDREW LLC & ORS." and not as

"ANDREW COMM. SCOPE INC", which has been made the

defendant in the instant case.

12. It was urged that the plaintiff knew that the defendant

company is a US based company and instead of suing the

defendant company in the US, it has chosen to sue the

defendant company in India deliberately in order to scuttle its

business as it is a rival company. The learned senior counsel

has referred to the observations passed by the Apex Court in

Dalip Singh Vs. State of UP and Ors. 2010 2 SCC 114,

wherein it was observed as under :-

"1. For many centuries Indian society cherished two basic values of life i.e. „satya‟ (truth) and „ahimsa‟ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain

thee values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.

              However,     post-independence period has seen
              drastic changes in our value system.            The

materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute t he stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."

13. In the light of the aforesaid facts, it was contended that the

plaintiff has deliberately been guilty of misleading the Court

and therefore, the ex parte ad interim order deserves to be

vacated.

14. The learned counsel has also placed reliance on case titled

S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath

(dead) by LRs & Ors. (1994) 1 SCC 1 in order to urge that the

very basis for obtaining the restraint order by the plaintiff was

based on concealment of facts, falsehood and misleading the

Court and therefore, not only an ex parte ad interim stay

which has been granted in favour of the plaintiff deserves to

be vacated but the suit itself deserves to be thrown out.

15. The learned senior counsel Mr. Sethi, tried to refute the

submission of the learned senior counsel for the defendant

no. 1. It was contended by Mr. Sethi, that there was no

concealment of material facts, misrepresentation or

withholding of information with a view to take undue

advantage. It has been contended by him that the defendant

as originally shown in the memo of parties is the main

company which does its business of wireless communication

either in its own name or in the name of its subsidiary

companies as is stated by the learned counsel for the

defendant no. 1.

16. It is stated that the defendant is trying to make an issue out

of nothing by urging as if the plaintiff had deliberately not

made the defendant company Andrew LLC as a party as it

was to gain something extra which is not the fact.

17. So far as the specifications which are not purported to be

annexed along with the certificate of patent by the plaintiff

are concerned, it was contended by Mr. Sethi, learned senior

counsel for the plaintiff that as a matter of practice, the

Indian Patent office apart from the details mentioned in the

certificate and design issued by them does not provide the

specifications and they have to be applied for by the party

concerned, in whose favour the patent is granted. In the

instant case, the plaintiff had already applied for the certified

copy of the details of the patent and that is the reason why

the information was downloaded from the website of the

patent office and annexed along with the present suit.

18. It was contended that the defendant cannot and ought not to

raise any objection on that score by urging that there is a

variation in the application of the plaintiff and the

design/formula which has been patented as it was urged that

the design and the formula which has actually been patented

is much wider in scope than the one which was applied for by

the plaintiff.

19. It was also contended by the learned senior counsel for the

plaintiff that as a matter of fact, the defendant no. 1 has no

locus standi to file the application under Order 39 Rule 4 CPC

as there is no restraint order against the defendant no. 1 and

it is only against the defendant nos. 2 and 3.

20. I have carefully considered the submission made by the

respective senior counsel for the parties and gone through the

record including the affidavit purported to be filed by the

plaintiff named Sh. Krishnamurthy Kalyanaraman on

26.11.2010.

21. At the outset, it must be stated that so far as the affidavit of

Mr.Kalyanaraman is concerned, the same is not being looked

into on account of the fact that this affidavit has been filed

without the permission of the Court or without there being

any application and moreover the affidavit is purported to

have plugged only the loophole which has been pointed out by

the learned senior counsel for the defendant no. 1. Therefore,

the said affidavit is not being looked into while considering

the question as to whether the ex parte ad interim order

dated 4.10.2010 should continue or be modified during the

pendency of the suit.

22. So far as the continuance of the ex parte ad interim order is

concerned, it may be pertinent here to refer to Order 39 Rule

4 CPC and its proviso, which reads as under:-

"4. Order for injunction may be discharged, varied or set aside

[Provided that if in an application or temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material party injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]

23. A perusal of the aforesaid Rule would clearly show that a

party come to the Court with clean hands and should not

make any averment on affidavit which is not only false or

misleading statement in relation to material particulars and if

the injunction is being granted on the basis of the same

without giving notice to the opposite side the Court shall

vacate the injunction unless for the reason to be recorded it

considers it is not necessary to do so. Meaning thereby that if

the Court is satisfied that on account of certain false

averments or concealment of facts a party has been able to

obtain restraint order then a duty is cast on the Court to

vacate the said order unless and until the Court for the

reasons recorded in writing finds to the contrary.

24. In the instant case, I am prima facie in agreement with the

submissions made by the learned senior counsel for the

defendant no. 1 that the plaintiff has tried to give filtered and

selective information as a consequence of which although the

interim order is not passed against the defendant no. 1 but in

effect it has hurt the interest of the said defendant and that is

why the present application has been filed. At the outset, it

must be stated that the Court was not inclined to grant an ex

parte ad interim stay in favour of the plaintiff and against the

sole defendant which happens to be the parent company of

the defendant on 27.9.2010 as well as on 28.9.2010 on

account of lack of prima facie evidence to show that the

patented invention of the plaintiff was being infringed. It

was only after the matter was adjourned that the learned

counsel for the plaintiff filed the affidavit of one Mr. Pancholy

wherein it was alleged that the „bi sector antenna‟ was being

sold by the defendant company to the Tata Tele Services. It is

stated that even at that stage, the Court had committed a

mistake as two cases were taken up together and the Court

carried an impression that the defendant no.1 was a Chinese

party and that is why in the order dated 4.10.2010 the Court

has inadvertently observed that defendant no. 1 has an office

in China and it is not possible to serve the said party by

ordinary means which necessitated the issuance of the

interim order.

25. Another mistake which has taken place while issuing an ex

parte ad interim order is that although the affidavit of

Mr.Pancholy does not talk about the „bi sector antenna‟ being

supplied by the defendant to Reliance Telecommunication, yet

Reliance Telecommunication has been ordered to be

impleaded as defendant no. 2. Again this is on account of a

mistake that in the connected matter which was listed on the

same date which was actually argued, the defendant no. 2

was Reliance Telecommunication and defendant no. 3 was

Tata Tele Services against whom the restraint order was

issued. It was the duty of the plaintiff to have pointed out

this error apparent on the face of the record in the order

dated 4.10.2010 which has not been done.

26. So far as the points which have been urged by the learned

senior counsel for the defendant no.1 Mr. Dave are

concerned, they are also not refuted by the other defendants

by filing affidavit at this stage and looking at the record. I feel

that the submissions made by Mr. Dave, learned senior

counsel cannot be brushed aside as inconsequential. I am

inclined to accept the submission made by the learned senior

counsel that on account of acts of omission and commission

on the part of the plaintiff, the plaintiff ought to have pointed

out that there is a mistake occurring in the order, the

operation of the impugned order is stayed.

27. The observation of the Apex Court in S.P. Chengalvaraya

Naidu's case where it has been held that the entire

proceedings at whatever stage are vitiated and the

proceedings would be struck off in case a party takes

advantage of any falsehood, misrepresentation of coercion but

that may not be the case in the present one.

28. So far as the present case is concerned, the only question to

be considered is the balance of equity at this stage whether

the defendant no. 1 in the light of the aforesaid mis-

statements or wrong facts having been given by the plaintiff,

the interim order dated 4.10.2010 deserves to be suspended

or modified so as to permit the parties to complete the

pleadings of the main suit as well as the application and then

decide the question of grant of stay afresh. The answer to the

aforesaid query in my considered opinion must be in

affirmative.

29. In the light of the aforesaid facts, I am inclined to issue notice

of the application to the plaintiff who may file reply to the

application within two weeks from today. So far as the

operation of the order dated 4.10.2010 with regard to the

impugned order is concerned, the same shall be kept in

abeyance till the time the pleadings are completed. But in

order to balance the equities as suggested by Mr. Dave, the

learned senior counsel has stated that the defendant no. 1

can maintain accounts of the entire transaction which it has

entered into with either the defendant no. 3 or any other

party for supply of Bi-Sector array antennae patented would

be kept in a proper form so that in case the patent of the

plaintiff succeeds at least the defendant can be put to terms

by directing it to pay the damages.

30. For the reasons mentioned above, I accordingly vacate the

order dated 4.10.2010 with the direction that the plaintiff

shall file reply to the application within 30 days from today

with an advance copy to the defendant who may file response

thereto within two weeks thereafter and so far as the

defendant no. 1 is concerned, it shall file reply to the

remaining applications and the written statement within four

weeks from today so as to enable the Court to decide the

other applications also. Expression of any opinion

hereinbefore may not be treated as an expression on the

merits of the case or the interim application to be decided by

the Court.

31. Post the matter before the Joint Registrar on 20.1.2011 for

completion of pleadings.

V.K. SHALI, J.

NOVEMBER 30, 2010 RN