Sugen Inc & Ors. vs A Rao & Anr.
2012 Latest Caselaw 7049 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                    Judgment delivered on:             10th December, 2012


+     CS(OS) 1866/2012
      SUGEN INC & ORS                         ..... Plaintiffs
                             Through Mr. T.R. Andhyarujina, Sr. Adv. with
                                        Mr.PravinAnand, Mr. S. Ghoshal
                                        andMr.Aditya Gupta, ADvs.
                    versus


      A RAO & ANR                                                ..... Defendants
                             Through Dr.Abhishek Manu Singhvi, Sr. Adv.
                                        withMr. C. Mukund, Mr. P.V.
                                        Saravana Raja, Ms.EktaBhasin and
                                        Mr. Ravi Kumar, Advs.
      CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR

IA No. 21628/12

1.    This order shall dispose of the application filed by the plaintiffs under

Section 151 CPC of the Code of Civil Procedure, 1908, whereby the plaintiffs

seek direction to formally vacate the abeyance orders dated 9th November, 2012

and 26th November 2012 and restore the ex parte ad interim injunction order dated

22nd June, 2012 passed by this Court and also direct defendant No.2 to recall the




 CS(OS) No. 1866/2012                                                    Page 1 of 12
 stock of its infringing products which infringe the patent No. 209251 including

stocks of products containing the pharmaceutical compound SUNITINIB, being

marketed by the defendants under the brand name SUNINAT.

2.    Addressing arguments on this application, Mr. T.R. Andhyarujina, Senior

Advocate appearing for the plaintiffs submit that vide order dated 27th November

2012, the Hon'ble Supreme Court has set aside the order dated 24.9.2012, passed

by the Assistant Controller of Patents and designs and consequently held that the

order dated 8.10.2012 passed by the learned Single Judge of the Delhi High Court

in the Writ Petition No. 6361/2012 as well as the order dated 12.10.2012 passed

by the Division Bench of the High Court in Letters Patent Appeal No. 695/2012

would also stand set aside. Counsel thus submits that with the said order passed by

the Hon'ble Supreme Court of India, the order dated 9th November, 2012 and

26.11.2012 whereby the interim stay order dated 22.6.12 passed by this Court was

kept in abeyance be now vacated and the ex parte ad interim injunction order dated

22nd June, 2012 be restored back.

3.    Learned senior counsel submits that it would be pertinent to give a brief

background as to how and what lead this controversy knock the doors of the

Hon'ble Supreme Court and under what circumstances the Hon'ble Supreme

Court finally emanated to pass the said order dated 27th November, 2012. The

learned senior counsel submits that the plaintiffs have filed the present suit for


 CS(OS) No. 1866/2012                                                  Page 2 of 12
 permanent injunction against M/s NATCO Pharma Limited, to seek an order of

restraint against them from making, selling, distributing or dealing in any product

that infringes the patent rights of the plaintiffs in patent No. 209251 entitled

"Pyrrole Substituted 2-Indolinone Protein Kinase Inhibitors". Counsel also

submits that vide order dated 22nd June, 2012 this Court granted ex parte ad

interim injunction in favour of the plaintiffs and against the defendants thereby

restraining the defendants from making, using, selling, distributing, advertising,

exporting, offering for sale, and in any other manner, directly or indirectly, dealing

in any product that infringes the subject matter of the Indian patent No. 209251 of

the plaintiffs. Counsel further submits that M/s Cipla Ltd. who is a third party and

not a party before this Court in the present case, had filed a post grant opposition

challenging the legality and validity of patent No. 209251 and vide order dated

24.9.2012, the Assistant Controller of Patents and designs passed an order thereby

revoking the said patent No. 209251. Counsel further submits that the said order of

the Assistant Controller of Patents and Designs was challenged by the plaintiff in a

writ petition bearing W.P. (C) No. 6361 of 2012 and vide order dated 8th October,

2012, the learned Single Bench of this Court passed a restraint order thereby

restraining the respondent No. 2 therein (M/s Cipla Ltd.) from marketing the

generic version of its drug. Counsel further submits that the aforesaid order dated

8.10.2012 was challenged by M/s Cipla Ltd. before the Hon'ble Division Bench of

this Court by way of LPA No. 695/2012 and the Hon'ble Division Bench

dismissed the said appeal filed by M/s Cipla Ltd. vide order dated 12 th October,

2012, with the observations that the said order of the learned Single Judge is only

an interim arrangement, operative till the next date of hearing as the arguments on

the stay application were yet to be heard by the learned Single Judge in the said

matter. Dissatisfied by the order of the Hon'ble Division Bench, M/s Cipla

Limited, respondent No. 2 in the said proceedings filed a Special Leave Petition

bearing no. 34504-34505/2012 before the Hon'ble Supreme Court thereby

challenging the order dated 8.10.12 passed by the learned Single Judge and order

dated 12th October, 2012 passed by the Hon'ble Division Bench of this Court. The

Hon'ble Supreme Court of India passed an ex parte order dated 8th November,

2012 thereby staying the operation of the aforesaid orders dated 8th October, 2012

and 12th October, 2012 and thereafter, placed the matter for hearing on 19th

November, 2012 at the request of the plaintiffs herein.

4. The learned senior counsel also submits that in the said Special Leave

Petition, defendant No. 2 herein i.e. M/s NATCO Pharma Limited had also filed

an application seeking their impleadment, and at the time of hearing of the said

Special Leave Petition, defendant No. 2 remained effusively represented through

their counsel. Counsel further submits that the Hon'ble Supreme Court after

hearing the parties on three dates, passed an order dated 27th November, 2012

thereby quashing the order dated 24th September, 2012 passed by the Assistant

Controller of Patents and designs on the premise that the said order was in

violation of the principles of natural justice. Counsel further submits that with the

passing of the order dated 27th November, 2012 by the Hon'ble Supreme Court,

the patent No. 209251 perfunctorily stands reinstated/ restored and with the

restoration of the said patent of the plaintiff, the plaintiff becomes entitled to seek

restoration/revival of the order dated 22nd June, 2012 passed by this Court.

5. The learned Senior Counsel further states that the defendants herein,

have filed two applications i.e. IA No. 18678/12 under Section 151 CPC and

IA No. 18679/2012 under Order 39 Rule 4 read with Section 151 CPC and in both

the said applications, the common ground taken by the defendants for the vacation

of the stay order is revocation order dated 24th September, 2012 passed by the

Assistant Controller of Patents and designs. Counsel further submits that the said

applications came up for hearing before this Hon'ble Court on 9th November,

2012, and since as on that date, the Hon'ble Supreme Court had stayed the

operation of the orders dated 8th October, 2012 and 12th October, 2012, therefore

this Court simply placed the order dated 22.6.2012 under abeyance till the next

date i.e. 26.11.2012. Counsel further submits that on 26.11.2012 this Court further

extended the said abeyance order and at the time of passing of these orders, this

court specifically observed that the said abeyance order and its extension will be

subject to the orders to be passed by the Hon'ble Supreme Court in the Special

Leave Petition. Counsel further submits that with the restoration of the plaintiffs'

patent No. 209251 by the Hon'ble Supreme Court of India, the plaintiffs are now

entitled to seek restoration of the ex parte order dated 22nd June, 2012.Counsel

further submits that placing the said orders dated 9th November, 2012 and 22nd

June, 2012 in abeyance will in any case cease to have any further effect. Counsel

also submits that taking advantage of the said abeyance order, the defendants have

malafidely launched a generic version of the plaintiffs drugs which is in complete

violation of patent No. 209251 and if the said order dated 22nd June, 2012 is not

immediately restored, then the defendants will continue to sell their infringing

product which would cause serious prejudice to the rights of the plaintiffs.

6. Based on the above submissions, Mr. T.R. Andhyarujina, Sr. Advocate

states that the plaintiffs are entitled for the restoration of the ex parte order dated

22nd June, 2012 passed by this Court as the abeyance orders dated 9th November,

2012 and 26th November, 2012 passed by this Court were made subject to the

orders to be passed by the Hon'ble Supreme Court in the said Special Leave

Petition.

7. This application has been strongly opposed by Dr. Abhishek Manu Singhvi,

Sr. Advocate representing the defendants. Taking a diametrical opposite stand,

counsel for the defendants submit that in fact, the order dated 27th November

2012, passed by the Hon'ble Supreme Court of India is in complete affirmation

with the stand taken by the defendants, otherwise the Hon'ble Supreme Court of

India would not have vacated the orders dated 8.10.2012 and 12.10.2012 passed

by this Hon'ble Court. The contention raised by the learned senior counsel for the

defendants is that with the vacation of the said order by the Hon'ble Supreme

Court, M/s Cipla enjoys absolute protection of selling and marketing their generic

drug, but the present defendants who are not even parties in the writ petition,

would be put to an adverse position. Counsel further submits that although

impleadment application was moved by these defendants to seek their

impleadment before the Hon'ble Supreme Court in the said Special Leave Petition

and had the Supreme Court of India not vacated the said orders dated 8.10.12 and

12.10.12, then the defendants would have certainly taken their chance to intervene

in the said matter.

8. Counsel further argued that the Hon'ble Supreme Court of India has

granted four weeks' time to the Assistant Controller of Patents and designs to

dispose of the matter afresh after hearing all the parties affording them an

opportunity to raise their contentions for and against the recommendation of the

opposition Board within a period of one month from the date of the

communication of the said order and, therefore, this Court may await the outcome

of the decision of the Assistant Controller of Patents and designs and in the

meanwhile allow the defendants to sell and market their generic drug which is

being sold considerablyat a lesser price as compared to that of the plaintiffs.

Counsel thus submits that the balance of convenience strongly lies in favour of the

defendants and if the order dated 22.6.12 is not kept in abeyance till the matter is

decided by the Assistant Controller of Patents and designs in compliance with the

directions given by the Hon'ble Supreme Court of India, the defendants would

suffer an irreparable loss and injury. Counsel further submits that the Hon'ble

Supreme Court of India has not granted any injunction order in favour of the

plaintiffs and if the plaintiffs have any grievance with the order passed by the

Hon'ble Supreme Court of India, then the remedy of the plaintiffs lie with the

Hon'ble Supreme Court of India and not by seeking any direction, which is not in

conformity with the letter and spirit of the order passed by the Hon'ble Supreme

Court of India.

9. I have heard learned counsel for the parties at considerable length and given

my anxious consideration to the arguments advanced by them.

10. It is a settled legal position that any order or judgment passed by the court

is not to be construed on the same footing as that of the statute. It is also trite that

the attendant circumstances, in the backdrop of which a judgment or order is

given, are equally important to ascertain the true intent and spirit of the order,

upon reading the same in its entirety.For any ambiguity or qualms the parties are

always at liberty to seek necessary clarification from the concerned court whose

orders create any sort of ambiguity or scruple. The order dated 27.11.2012 passed

by the Hon'ble Supreme Court of India has explicitly and unequivocally set aside

the order dated 24.9.2012 passed by the Assistant Controller of Patents and

Designs. With the setting aside of the order of the Assistant Controller of Patents

and Designs, there arises not even an iota of doubt that the said patent no. 209251

of the plaintiff gets restored and convalesced. With the revival of the said patent

plaintiff now seeks revival of the ex parte stay order dated June 22, 2012 passed

by this court, while on the other hand the defendants have opposed revival of the

said ex parte stay order. This court is at loss to comprehend the stand taken by the

defendants that, since the Hon'ble Supreme Court of India has set aside the order

dated 8.10.12 passed by the Learned Single Judge in writ petition no. 6361/2012

as well as the order dated 12.10.2012 passed by the Division Bench in LPA No

695 of 2012, therefore the defendants acquire a position at par with M/s Cipla

Limited, to market and sell their generic drug to treat the cancer patients. One

cannot lose sight of the fact that ex parte stay order was granted by this court vide

order dated 22.6.2012 much prior to the order dated 24.09.2012 passed by the

Assistant Controller of Patents and Designs. It is also an undeniable fact that the

said patent number 209251 of the plaintiff was revoked not at the instance of the

present defendant but at the instance of M/s Cipla Limited and in order to

challenge the said order of the Assistant Controller of Patents and Designs, the

plaintiffs had filed a writ petition bearing W.P. (C) 6361 of 2012 and vide order

dated 8.10.2012, M/s Cipla Limited was restrained from marketing their generic

product pending hearing of the writ petition. The said order dated 8.10.2011

passed by the learned Single Judge was confirmed by the Hon'ble Division Bench

vide their order dated 12.10.2012. Both these orders were challenged by Cipla

before Hon'ble Supreme Court of India and vide order dated 8.11.2012, the

Hon'ble Supreme Court of India had passed an interim stay order to further stay

the operation of the orders dated 8.10.12 & 12.10.2012.

11. On 9.11.2012 two applications moved by the defendants i.e. IA

No.18678/2012 under Section 151 CPC and IA No.18679/2012 under Order 39

Rule 4 CPC were listed for consideration and when this court was apprised that the

Hon'ble Supreme Court of India in SLP No. 695 of 2012 has granted an interim

injunction to stay the operation of the orders dated 8.10.2012 and 12.10.2012,

considering this development and on taking into consideration that with the grant

of the said stay order passed by the Hon'ble Supreme Court the order dated

24.09.2012 passed by the Assistant Controller of Patents and designs got revived,

this court thought that it would be just and proper to place the exparte order dated

22.6.2012 in abeyance.

12. On 26.11.2012 the matter was again taken up by this court in IA. No. 21258

of 2012, moved by the defendants under Section 151 CPC to seek extension of the

operation of the abeyance order till the next date of hearing and while granting

further extension in the said abeyance order, the court explicitly made it clear that

the order of the abeyance shall be subject to the final outcome of the Civil appeal

pending consideration before the Hon'ble Supreme Court.

13. This court has been informed that detailed arguments have been heard by

the Hon'ble Supreme Court and during the hearing of the said civil appeal there

was due representation of the present defendants, although they were not parties

before the Supreme Court or before the writ court. In the backdrop of the aforesaid

admitted facts, it is totally unfathomable as to how the defendants can derive any

advantage from the decision of the Hon'ble Supreme Court, setting aside of the

orders passed by the learned Single Judge in the writ case as well as by the

Hon'ble Division Bench in appeal, as indisputably the defendants were not parties

in the said proceedings. It is also an undeniable fact that common ground taken by

the defendants in IA No 18678/2012 and IA No. 18679 of 2012 was the revocation

of order dated 24.9.2012 passed by the Assistant Controller of Patents and Designs

and not the orders dated 8.10.2012 and 12.10.2012 which were passed by the

respective courts at a later stage. The defendants therefore, cannot derive any

unfair advantage by interpreting the order dated 27.11.2012 in an uncanny and

unusual manner without appreciating the entirety of facts in its proper

perspective.In any event, the defendants must stand on their own legs to seek

vacation of the stay order dated 22.06.2012, for which the applications moved by

them are already pending consideration before this Court.

14. In the light of the above discussion, this Court does not find any merit in

the contentions raised by the counsel for the defendants opposing the revival of the

ex parte stay order dated 22nd June, 2012. The ex parte ad interim injunction order

dated 22nd June, 2012 thus stands revived. The present application moved by the

plaintiff is accordingly allowed.

KAILASH GAMBHIR, J DECEMBER 10, 2012