F. Hoffman-La Roche Ltd. & Anr. vs Dr. Reddy???S Laboratories Ltd. & ...
2011 Latest Caselaw 3964 Del

*              HIGH COURT OF DELHI : NEW DELHI

                                 Judgment pronounced on: 16.08.2011

+           IA Nos.7397/2011 & 9792/2011 in CS(OS) No. 81/2010


F. HOFFMAN-LA ROCHE LTD. & ANR.        .......PLAINTIFFS
                Through: Mr Pravin Anand, Adv. with
                         Mr Sharwan Chopra and Ms Krutikka
                         Vijay, Adv.


                                 Versus


DR. REDDY'S LABORATORIES LTD. & ANR.
                                      .....DEFENDANTS
                Through: Ms Prathiba M. Singh, Adv. with
                         Ms Saya Choudhary, Adv. for D-1.
                         Mr Gaurav Barathi, Adv. for D-2.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                Yes

3. Whether the judgment should be reported           Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiffs have filed the present suit for permanent

injunction restraining infringement of Patent No.196774, rendition of

accounts, damages and delivery up.

2. By this order I shall decide the two applications, being IA

No.7397/2011 and IA No.9792/2011. The first application i.e. IA No.

7397/2011 is filed by the plaintiff under Section 151 CPC for the

consolidation of another suit namely F. Hoffman-La Roche Vs Natco

Pharma Ltd., CS (OS) No. 2465 of 2009 with the present suit. The

second application under Section 151 CPC is filed by defendant No.1

seeking closure of the plaintiff's right to lead evidence.

IA No. 7397/2011 by plaintiffs

3. In this application, it is stated by the plaintiffs that as the

other suit of the plaintiffs namely F. Hoffman-La Roche being CS (OS)

No. 2465 of 2009 is also for the infringement of the same patent

registered under No.196774 by Natco Pharma Ltd. who is defendant

No.2 in the present case. The present status of the said case is that

arguments on interim injunction application had now been concluded

and orders are reserved on 19.04.2011. Prayer is made in the

application that both suits be consolidated in order to avoid unnecessary

duplication of evidence. It would save the time of the court in final

adjudication of the two matters.

4. In its reply to this application, the defendant No.1 submits

that both the suits are at different stages, i.e. the present suit is at the

stage of recording of evidence by the local commissioner and in CS

(OS) No.2465/2009 the issues are yet to be framed. It is also stated that

the defendant No.1 in the present case is not a party in the earlier suit

and any decision on the rights and liabilities of defendant No.1 in the

present suit may cause prejudice to the defendant No. 2.

IA No.9792/2011 by the defendant No.1

5. In this application, the defendant No.1 has submitted that on

07.03.12011 the issues were framed in the matter and the plaintiffs

were given eight weeks time to file the list of witnesses and affidavits

by way of evidence. Further, at the behest of the plaintiff, a local

commissioner was also appointed by this court for recording of

evidence. However, till date the plaintiffs have no filed evidence by

way of affidavits except a list of witnesses was filed. Therefore, the

prayer is sought for closure of the right of the plaintiffs to lead

evidence.

6. In reply to this application filed by the plaintiffs, it is stated,

that since, plaintiffs are seeking consolidation of the present suit with

CS (OS) No. 2465/2009. Therefore, it would be just and expedient

that the plaintiffs be allowed to file their evidence to comprehensively

addressing all the issues at one place instead of filing the similar

evidence two times.

7. Before dealing with the rival submissions of both the

parties, it is necessary to give certain facts about the detail of the

parties and their relations :

(i) The plaintiffs earlier filed a suit for infringement of

Patent No.196774 against Natco Pharma Ltd. (who is

defendant No.2 in the present case) wherein the

issues are yet to be framed.

(ii) Later on the plaintiffs have filed the present second

suit for infringement of patent in relation to same

patent against two parties, i.e., Dr. Reddy's

Laboratories Ltd./defendant No.1 and Natco Pharma

Ltd./defendant No.2.

(iii) Admittedly the product in question is being

manufactured by defendant No.2 Natco Pharma Ltd.

on behalf of defendant No.1. Although the defendant

No.1 in the present suit, i.e., Dr. Reddy's

Laboratories Ltd. is not a party in the earlier suit filed

by the plaintiffs.

8. The learned counsel appearing on behalf of the defendant

No.1 has opposed the present application mainly on the following

grounds:

A) The first submission of the learned counsel for the

defendant No.1 is that the earlier suit filed by the

plaintiff against Natco Pharma Ltd. is at different

stage.

In the present suit, issues were framed on 07.03.2011. The Local Commissioner was appointed to record the evidence of the parties and eight weeks time was granted for the said purpose. The said period had expired on 02.05.2011. After the expiry of the period, the plaintiffs have now filed the present application for consolidation with malafide intention. Hence, the defendant No.1 has filed the requisite application being IA No.9792/2011, for closure of evidence.

B) The second submission is that the defendant No.1 in

the present case had earlier filed an application, being

IA No. 1651/2011 seeking consolidation of the

present suit with other three suits pending before this

Court on the similar reasons including the suit in

question of which the plaintiff has now sought

consolidation. It is argued that the same very

plaintiffs opposed the defendant No.1's application.

Therefore, now the plaintiffs cannot ask for

consolidation.

Further, the defendant No.1 is not a party in the

earlier suit, the case of defendant No.1 would be

prejudiced if the orders of consolidation are passed.

9. In reply, Mr Pravin Anand states that earlier the consent on

behalf of plaintiffs could not be given due to the reason that in the first

suit being CS(OS) No.89/2008 filed against M/s Cipla Limited, the

evidence of the parties was recorded on priority basis as per direction of

the Supreme Court who expedited the suit for final disposal, otherwise,

the plaintiffs ought to had agreed at time itself. As far as the fourth suit

filed against Glenmark Pharmaceuticals for the same patent is

concerned, the plaintiffs have no objection in case the same be also

clubbed.

10. As far as the application filed by the defendant No.1 is

concerned, Mr. Anand states that evidence, as directed by the Court

vide order dated 07.03.20110, could not be adduced in view of filing of

present application for consolidation. He further submits that the

defendant no.2 has not completed the admission and denial of

document as directed by the court at the time of framing of issues,

therefore, even otherwise, there was a non compliance on the part of

defendant No.2 which cannot be attributed to the plaintiffs, otherwise

the plaintiffs are ready to file the evidence after passing the order as the

evidence in both matters are already prepared for filing.

11. The Code of Civil Procedure, 1908 does not have specific

provision for consolidation of proceedings but the order of the same can

be passed under the provision of inherent power of this Court and the

party can invoke the jurisdiction under Section 151 CPC. No doubt, the

powers have to be exercised fairly to meet the ends of justice and to

prevent an abuse of process of the Court. The orders of consolidation

are normally passed if it saves the parties from multiplicity of the

proceedings, delay and expenses.

12. In the case of M/s Chitivalasa Jute Mills v. M/s Jaypee

Rewa Cement; AIR 2004 SC 1687, the Supreme Court observed as

under:

"9. ....The fact remains that the cause of action alleged in the two plaints refers to the same period and the same transactions, i.e., the supply of jute bags between the period 07.01.1992 and 31.12.1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defence in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different courts. Thus, there will be duplication of recording of evidence if separate trials are held. The two courts would be writing two judgments. The possibility that the two courts may record finding inconsistent with each other and conflicting decrees may come to be passed cannot be ruled put.

12. The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Visakhapatnam, the two suits shall be consolidated

for the purpose of trial and decision. The Trial Court may frame consolidated issues. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam."

13. After having heard both the parties, it is not disputed that the

subject matter of patent and relief sought are same. It is also not

disputed by the defendant No.1 that the defendant No.2 is manufacturer

of their products against whom the earlier suit filed by the plaintiffs and

the same is defendant No.2 herein. It also appears that most of

documents, issues and evidence to be produced by the parties would be

common. It is not in dispute that the plaintiffs' witnesses are also

from overseas. The defendants' witnesses would also be from outside

the jurisdiction of this Court. The nature of the suit and cause of action

are similar. The defendant No.2 in the present suit is the manufacturer

of defendant No.1 and is the sole defendant in the earlier suit which

was filed on the basis of the same patent.

14. As far as stages of two suits are concerned, in the present

suit, issues have been framed and directions have been issued for

production of evidence and in the earlier suit the order has been

reserved on injunction application. As soon as the said orders are

pronounced, the said suit will also come up before Court for framing of

issues and similar directions can be given to produce the evidence by

the plaintiffs. No prejudice would be caused to the defendants if the

orders for consolidation are passed.

15. I do not feel that there is any ulterior motive on the part of

the plaintiffs to file the present application, rather in order to expedite

the proceedings, the plaintiffs had withdrawn their application for

interim injunction against the defendants. Therefore, question of

malafide on the part of the plaintiffs does not arise. I am of the

opinion, rather, it would be more appropriate if both the suits are

consolidated as the witnesses of the parties would not come twice. It

will not only curtail the delay and save the time of the Court but also

save the expenses to be incurred by the parties.

16. The application of the plaintiffs is allowed. As far as

application of the defendant No.1 is concerned, in view of the orders

passed in IA No.7397/2001, the second application filed by the

defendant No.1 being IA No.9792/2011 is dismissed.

CS(OS) No. 81/2010

List along with CS(OS) No. 2465/2009 on 03.10.2011.

MANMOHAN SINGH, J.

AUGUST 16, 2011 jk