Shogun Organics Ltd vs Bharat Rasayan Ltd & Anr
2015 Latest Caselaw 9312 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Order delivered on: 15th December, 2015

+                        CS(OS) No.616/2015

       SHOGUN ORGANICS LTD                               ..... Plaintiff
                    Through          Ms.Rajeshwari H., Adv. with
                                     Ms. Aparna Gaur, Adv.

                         versus

       BHARAT RASAYAN LTD. & ANR.              ..... Defendants
                     Through   Mr.Harsh Sewak, Advocate

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

I.A. No.25014/2015 (u/o VI R.17 CPC), by plaintiff

1. This is an application filed by the plaintiff under Order VI Rule 17 read with Section 151 CPC for amendment of the plaint. The plaintiff wishes to enhance the valuation of the suit for the purposes of Court fee and jurisdiction from Rs.21,01,600/- to Rs.1,00,02,400/-. Interim order in the present matter has not been passed. It is stated in the application by the plaintiff that from market resources, it has come to the notice of the plaintiff that the defendants are selling and have, in fact, flooded the market with their product TRANSFLUTHRIN thereby infringing the plaintiff's patent No.225306. In view of the said reasons, the plaintiff seeks to amend the paragraph 32 as well as paragraph 33(b) of the prayer clause.

2. Advance copy of this application was served to the learned counsel for the defendants. When the matter is taken up, no reply is

filed. There is no opposition to the prayer sought on behalf of the defendants.

3. The plaintiff filed the suit for permanent injunction to restrain the infringement of patent as well as for rendition of accounts and damages. The suit is valued for the purposes of Court fee and jurisdiction at Rs.21,01,600/-.

4. Learned counsel for the plaintiff submits that the present suit is not required to be transferred in view of the Proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.

5. Section 7 and the First Proviso to Section 7 of the Ordinance read as under:

"All suits and applications relating to commercial disputes of a Specified value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court.

Provided that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court."

6. Counsel has also pointed out the order dated 3rd December, 2015 passed by the Division Bench in writ petitions being W.P.(C) No.11035/2015, titled as Vifor (International) Limited v. The High Court of Delhi and W.P.(C) No.11043/2015, titled as Asian Patent Association (Indian Group) v. Registrar General, Delhi High Court, whereby it was directed that "...The cases arising out of Patents Act, 1870; Trademarks Act, 1999; Designs Act, 2000;

Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, shall not be transferred and in case application seeking amendment in the pecuniary value is filed, they shall be considered by the respective Single Judges in accordance with law."

7. Even otherwise, the learned counsel for the plaintiff states, that the present suit is not to be transferred in view of the second proviso to Section 10 of the Ordinance. She has made her submissions for some time.

8. I find that there is a force in the submissions of the learned counsel for the plaintiff. Section 104 of the Patents Act, 1970 reads as under:-

"104. Jurisdiction. - No suit for a declaration under Section 105 or for any relief under Section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:

Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with counter-claim, shall be transferred to the High Court for decision."

9. In the present case, on the face of it, there is a cogent material available on record in view of the grounds rendered by the defendants. Further, the order of the Single Bench in Balar Marketing Pvt. Ltd. v. Lakha Ram Sharma, 2002(97) DLT 424 was challenged in the Supreme Court who set aside the order of this Court in the case of Lakha Ram Sharma v. Balar Marketing Pvt. Ltd., (2008) 17 SCC 671. The contents of the said judgment reads as under:-

"3. A very short question is involved in this appeal. The appellant had filed a suit claiming that he is the proprietor of a trade mark "KUNDAN" and "KUNDAN CAB" in respect of PVC wires and cables and that the respondent was using the appellant's trade mark. Permanent injunction, rendition of accounts and other reliefs were claimed. The appellant applied for an amendment of the suit. The application for amendment was granted by the trial court. The High Court, however, by the impugned order, has disallowed only one portion of the amendment, namely, where the appellant sought to raise the valuation of the suit from Rs 1,00,000 (Rupees one lakh) to Rs 10,00,000 (Rupees ten lakhs). The High Court has held that such a claim is arbitrary and not based on any cogent material. The High Court has held that the application to raise valuation is not bona fide as it is done with the purpose of taking the suit out of the jurisdiction of that court.

4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs 1 lakh to Rs 10 lakhs, the trial court will determine, whether or not court fees are correctly paid".

10. It is also the admitted position that the defendants have filed the written statement wherein they have challenged the validity of the patent in question and have also filed the revocation. Under these circumstances, the prayer made in the application is liable to be allowed. Ordered accordingly.

11. The application is disposed of.

CS(OS) No.616/2015 & I.A. No.4654/2015, 4656/2015 & 8430/2015

The amended plaint has been filed. The same is taken on the record. Learned counsel for the plaintiff states that the Court fee shall be furnished within one week.

List on 9th February, 2016.

(MANMOHAN SINGH) JUDGE DECEMBER 15, 2015