Life Technologies Corporation & ... vs Atz Lab Solutions (India) Pvt. ...
2014 Latest Caselaw 3139 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Date of Decision: July 17, 2014

+                  CM No.9141/2014 in FAO (OS) No.255/2014


      LIFE TECHNOLOGIES CORPORATION
      & ANR                                                ..... Appellants
                   Represented by:    Mr.C.M.Lall, Advocate with
                                      Ms.Nancy Roy and Mr.Anuj Nair,
                                      Advocates

                                      versus

    ATZ LAB SOLUTIONS (INDIA)
    PVT LTD & ORS                                ..... Respondents
              Represented by: Mr.Salman Khursid, Sr.Advocate
                              Mr. Aman Lekhi, Sr.Advocate
                              instructed by Mr. Abhishek Saket,
                              Mr. Ankur Sood ,Mr. Amarjit Singh
                              and Mr.Shoumendu Mukherji,
                              Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. In the matter of filing appeals, we cannot think of a situation where there would not be an element of negligence if appeal is filed beyond the period of limitation prescribed. Thus, every delay would have some facet or the other of negligence. Therefore, while considering an application praying to the Court that delay in filing an appeal should be condoned, the issue has to be considered by the Court with reference to whether the appellants was bona fide taking steps to prosecute the appellate remedy. In this consideration pertaining to whether delay in filing the appeal needs to be

condoned or not, the facts have not to be construed pedantically i.e. each day's events have not to be seen separately. The period has to be looked at holistically with reference to the conduct of the party. The reason is that the presumption would be that a party would like to avail such remedies as are available to it and would not consciously abandon the same. Further, when the appellants is a corporate entity, the hierarchical structure in the organization and the decision making process has to be considered. If costs are a good recompense to the party inconvenienced due to delay, costs should be imposed while condoning the delay in filing the appeal.

2. In the decision reported as (2010) 8 SCC 685 Balwant Singh vs. Jagdish Singh & Ors. the Supreme Court has guided that where the explanation for the delay is reasonable or plausible and reflects normal behaviour of a common prudent person, a Court should tilt the judicial discretion in favour of such an applicant. The said decision further explains that „sufficient cause‟ implies the presence of legal and adequate reasons. In paragraph 38, the Court expanded as under:-

"38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi- Benches of this Curt have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that

these applications cannot be allowed as a matter of right and even in a routine manner. An application must essentially satisfy the above stated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications".

3. Guided by the statement of law above noted we proceed to consider CM No.9141/2014.

4. Laying a challenge to the impugned order dated January 29, 2014 and the appeal being filed on May 20, 2014, excluding 30 days time granted as per law for the appeal to be filed and further excluding the time spent for the Registry of this Court for preparing the certified copy of the impugned order, the delay in filing the appeal is of 73 days.

5. Sufficient cause pleaded for delay to be condoned is that having applied for a certified copy of the impugned order on January 30, 2014 i.e. the day next after the order was pronounced, when the appellants enquired from the Registry on February 08, 2014, certified copy could not be provided. It is pleaded that the appellants obtained the certified copy only on May 02, 2014. It is pleaded that in the meanwhile appellant No.1 viz. Life Technologies Corporation was acquired by another company named Thermo Fisher Scientific Inc. Acquisition was completed on February 03, 2014. This left to a change in the management. The new management took some time to examine the case and its implications flowing from the order impugned which took some time.

6. The sketchy pleadings in the application have been expanded by filing an affidavit in support of the application wherein it is pleaded that Thermo Fisher acquired the first appellant and the acquisition was completed on February 03, 2014. The Chief Legal Officer (General Counsel) left the company on February 21, 2014 and he had the complete institutional

knowledge of the dealing of the first appellant with the respondent. On February 26, 2014 the Vice President of intellectual property for Life Technologies who was primarily responsible for and oversaw the patent and trade marks matters also left the company. Mr.Peter Y. Lee assumes the responsibilities on February 26, 2014 for the Intellectual property matters of the first appellant. He took time to take charge of the affairs and called for a meeting of over 100 lawyers and para-legal administrators in the first week of April, 2014 in Carlsbad, California. During said meeting he was informed about the suit pending in this Court as well as forty other litigations around the world, but was not made aware of the deadlines to be met. He discussed the matters on May 12, 2014 when decision was taken to file the appeal.

7. Opposing the application the stand of the respondent is that February 08, 2014 was a second Saturday when the Registry of this Court was closed. Thus, the plea in the application that the appellants went to the Registry of this Court and was informed that certified copy of the impugned order was not ready is incorrect. With reference to the endorsement made by the copy Branch of this Court on the certified copy of the impugned order it is pointed out that when certified copy was applied for on January 30, 2014 the date notified for preparation of the certified copy was February 06, 2014. The certified copy was ready on February 05, 2014 and was available to be supplied to the appellants on February 06, 2014. Nobody went to receive the certified copy till May 08, 2014. It is pleaded that the actual reason for the appeal being filed belatedly is that in all probability no appeal was intended to be filed till when the respondent filed a civil suit in the court of the District Judge, Delhi for injunction against the appellants and on May 01, 2014 the learned Additional District Judge Shri Paramjeet Singh to whom the suit was assigned granted an ex-parte ad interim injunction which was

served upon the appellants on May 14, 2014 and since the learned Additional District Judge had relied heavily upon the impugned order to grant relief to the respondent, the appellants filed the appeal. Drawing attention to prayer (b) made in CM No.9140/2014 in which prayer (a) made is to stay the operation of the impugned order pending hearing of the appeal; in prayer (b) it is prayed that it should be clarified that nothing in the impugned order would affect or influence any proceedings in any other suit between the parties. Relying upon prayer (b) in CM No.9140/2014, the respondents would urge that the same would evidence the mind of the appellants : to file the appeal not to assert any right but to create a shield by way of defence in the suit filed by the respondents.

8. We highlight that the respondents have not denied the averments made by the appellants in CM No.9141/2014 that appellant No.1 was acquired by Thermo Fisher Scientific Inc. The averments deposed to on oath in the affidavit accompanying CM No.9141/2014, which averments we have succinctly noted in paragraph 6 above have also not been traversed. Thus, one thing is clear : that appellant No.1 was acquired by Thermo Fisher Scientific Inc. and that the acquisition proceedings were completed on February 03, 2014. As would normally happen when a company is taken over by another, senior level officers do leave and are replaced by others. In the absence of anything to rebut the stand of the appellants that its lead litigating counsel who reported directly to the Vice President of Intellectual property of the first appellant left on February 21, 2014 and five days thereafter even the Vice President left and that Mr.Peter Y.Lee took over, we have to accept said factual averments made by the appellants. We also have to accept, in the absence of a rebuttal, that Mr.Lee would take some time to take charge of the pending affairs of the first appellant.

9. Learned counsel for the appellant conceded to the fact that February 08, 2014 was a second Saturday and also to the fact that the certified copy of the impugned order being ready on February 06, 2014, there is a lapse on the part of the counsel for the appellants engaged before the learned Trial Judge to ensure that the certified copy was obtained by the Clerk of the counsel. Learned counsel for the appellant further conceded that the counsel remained negligent in not ensuring that the Clerk obtains the certified copy within time and remained supinely indifferent till May 08, 2014 i.e. for over three months.

10. The aforenoted facts would bring out that counsel for the appellants in the suit remained highly negligent and did not bother to obtain the certified copy of the impugned order within time. But, qua the appellants one thing is clear. They clearly instructed the counsel to obtain the certified copy immediately on the day when the impugned order was passed and this explains the certified copy being applied for the very next day. This is an evidence of the earnestness and the bona fide of the appellant to prosecute the appellate remedy.

11. When corporations are taken over and especially when corporations are taken over by a mega corporation, a state of flux comes into existence because many senior level officers leave or are retrenched for the reasons every acquisition or a merger results in clubbing of certain posts or the re- organization in the office. During this transitional period there is bound to be lack of coordination here and there and hence slips up.

12. It may be true that the suit filed by the respondents shook the appellants, but not for the reason mentioned by learned counsel for the respondents. The shock was to awake the appellant from the slumber induced by the re-organization of its affairs consequent upon the acquisition

of appellant No.1 and senior officers leaving appellant No.1.

13. The approach to setting the incline to overcome the gradient of sufficient cause is to so set the incline that the gradient is not steep i.e. subject to the facts brought before the court permitting it, the Court has to be liberal in considering the explanation.

14. The totality of the facts lead us to allow the application and for the inconvenience caused to the respondents impose costs in sum of `50,000/- (Rupees Fifty Thousand only) to be paid by the appellants to the respondents (one set).

15. The application is allowed subject to payment of costs in sum of `50,000/- (Rupees Fifty Thousand only) (one set) which shall be paid by the appellants to learned counsel who appears for the respondents within two weeks from today.

FAO (OS) No.255/2014 List on August 04, 2014 for directions.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE JULY 17, 2014 skb