Sanofi Aventis vs Intas Pharmaceuticals Ltd. & Anr.
2016 Latest Caselaw 29 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) 2590/2008

                                  Date of Decision: 5th January, 2016

IN THE MATTER OF:
SANOFI AVENTIS                                      ..... Plaintiff
                               Through : Mr. Pravin Anand with

                               Ms. Neha Reddy, Advocates

                  versus

INTAS PHARMACEUTICALS LTD. & ANR.          ..... Defendants
                        Through: Mr. Kapil Midha, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A. No. 25880/2015 (by the plaintiff u/O VI R 17 CPC)

1. At the outset, learned counsel for the plaintiff states that due

to an inadvertent error made in para 21 of the application which

reproduces the proposed para 22(c) sought to be incorporated in

the plaint, damages have been quantified at Rs.20 lacs whereas the

said figure should be read as Rs.1 crore. He requests that he may

be permitted to carry out the necessary corrections in the

application, to which the other side has no objection.

2. Learned counsel for the plaintiff has been permitted to carry

out the corrections in Court as requested for, against his signatures.

3. The present application has been filed by the plaintiff under

Order VI Rule 17 of the CPC, praying inter alia for permission to

amend paras 18, 21 & 22 of the plaint.

4. The plaintiff has averred in para 18 of the original plaint that

apart from the irreparable and incalculable losses and damages to

its goodwill and reputation, it is also likely to suffer monetary

damages in terms of loss of sales which are estimated to be to the

tune of several lakhs. Learned counsel for the plaintiff submits that

the suit was instituted in the year 2008 and over the years, the

estimated losses that were initially pegged at several lakhs, have

mounted to several crores on account of the defendant's alleged

unlawful adoption of the trademark, "CLAVIX" for the medicines sold

by them in the market in this duration.

5. Para 21 of the plaint is the suit valuation para. The

amendment prayed for in this para is for revision of the court fees

fixed for the reliefs of permanent injunction and damages from

Rs.200/- to Rs.50,00,500/-. Mr.Anand, learned counsel submits that

the court fees has to be paid on the said amount. Similarly, the

plaintiff seeks permission to enhance the damages claimed from the

defendants from Rs.20,01,000/- as was prayed for originally, to

Rs.1 crore and seeks leave to pay the difference in the court fees.

6. It is pertinent to note that the plaintiff had instituted the

present suit in the year 2008 for the relief of permanent injunction

for restraining the defendants from infringement of trademark, for

passing off, etc., in respect of the mark, "CLAVIX" being used by

them for manufacturing blood thinning medicines on the ground

that the said mark infringes the plaintiff's trademark, "PLAVIX"

used for a similar medicine. Additionally, the plaintiff has raised a

grievance against the defendants that they have adopted a

deceptively similar trade dress for the aforesaid medicine as

adopted by the plaintiff.

7. Learned counsel for the plaintiff states that at the time of

instituting the present suit, the plaintiff had notionally valued the

suit for the purposes of court fees and jurisdiction at Rs.20,02,000/-

on the basis of the monetary losses that it had estimated it would

sustain due to the defendants' acts of infringement and on account

of misuse of its intellectual property. However, during the pendency

of the suit, it has transpired that the defendants have fixed a price

of their product sold under the mark, "CLAVIX" at around Rs.51.50

paise per 10 tablets. It is submitted that due to the continuous

sales made by the defendants over the past several years, the

quantum of damages suffered by the plaintiff in the event the suit is

decreed in its favour, shall exceed Rs.1.00 crore. Learned counsel

submits that the plaintiff reserves its right to enhance its claim for

damages upon discovering better particulars of the defendants'

sales and revenues for the drug manufactured by it under the

infringing mark, "CLAVIX'.

8. As for the valuation of the plaintiff's mark, "PLAVIX" in

relation to the drug in question, the plaintiff has set out in para 10

of the application, the sale figures of its drug, "PLAVIX" from the

year 1998 till May 2008, which ranges from USD 12,688 to USD

53,686. Based on the said figures, the plaintiff has valued its

intellectual property in the brand and trademark, "PLAVIX" at

Rs.1.00 crore. Learned counsel for the plaintiff contends that the

defendants have extensively benefited from selling its infringing

pharmaceutical preparations that are meant to be used for the

same ailment which the consumers have bonafide purchased under

a mistaken notion that they emanate from the plaintiff. Claiming

that the defendants' action amounts to infringement of the plaintiff's

product sold under the trademark "PLAVIX", and has not only

caused monetary losses to the extent of Rs.50,00,500/-, it has also

resulted in the defendants passing off their products as that of the

plaintiff, it seeks to amend the plaint by conservatively valuing the

suit at a minimum Rs.2.00 crores.

9. Notice.

10. Learned counsel for the defendants accepts notice and states

that while he does not oppose the request for amendment of the

plaint made by the plaintiff in the present application, he refutes the

allegations levelled against the defendants on merits and reserves

the right of his clients to file a written statement contesting the said

pleas, if the same is allowed.

11. It may be noted that by the time the present application was

filed on 18.12.2015, the Commercial Courts (Commercial Division

and Commercial Appellate Division) of High Court Ordinance, 2015

(hereinafter referred to as the `Ordinance') had already been

promulgated on 23.10.2015. Section 7 and the first proviso of the

said Ordinance that deals with the jurisdiction of Commercial

Divisions of the High Court reads as under:

"Section 7. Jurisdiction of Commercial Divisions of High Court - All suits and applications relating to commercial disputes of a specified value filed in a High Court have 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."

12. When the application was listed, on the last date of hearing,

i.e., on 21.12.2015, learned counsel for the plaintiff had drawn the

attention of the Court to the order dated 3.12.2015 passed by the

Division Bench in WP(C) No.11035/2015, entitled "Vifor

(International) Limited vs. The High Court of Delhi" and WP(C)

No.11043/2015, and WP(C) No.11043/2015, entitled "Asian Patent

Association(Indian Group) Vs. Registrar General, Delhi High Court",

wherein the Division Bench had passed an interim order as under :

"After hearing learned senior counsel for the petitioners and Mr.Sanjoy Ghose and Mr.Raj Shekhar Rao, counsel for the respondent/Delhi High Court, we are of the view that, prima facie, interpretation to Proviso to Section 7 of the Ordinance requires consideration. Accordingly, till the next date of hearing, cases arising out of Patents Act, 1970; 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."

13. By now the legal position has changed inasmuch as the "The

Commercial Courts, Commercial Division and Commercial Appellate

Division of the High Courts Act, 2015" has been legislated on

31.12.2015, whereunder the first proviso of Section 7 stands

amended and it reads as follows:

"Section 7. Jurisdiction of Commercial Division of High Court - 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 or pending on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court."

14. It is submitted by learned counsel for the plaintiff that since

the newly minted Act has now clarified 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 or pending" on the

original side of the High Court, shall be heard and disposed of by

the Commercial Division of the High Court, even if the jurisdictional

value of the suit remains below Rs.1.00 crore it would still lie before

the Commercial Division of the High Court and cannot be

transferred to the subordinate courts. Therefore, the present suit

that raises a commercial dispute will be heard and decided by the

High Court dehors the proposed amendments. If the proposed

amendments to the plaint are allowed, it will enhance the value of

the suit to over Rs.1 crore which in any event is the specified value

in relation to a commercial dispute, as defined in Section 2(i) of the

Act.

15. Lastly, learned counsel for the plaintiff urges that assuming

that the suit had to be transferred to a subordinate court in view of

the Notification No.27187/DHC/Orgl. dated 24.11.2015, issued under

Section 4 of the Delhi High Court (Amendment) Act, 2015 (Act 23 of

2015), then too the jurisdiction of this court would not be ousted

when it comes to passing an order on an application for seeking

amendment of the plaint for enhancement of the valuation of the

suit. In support of the said submission, he places reliance on the

decision in the case of Lakha Ram Sharma Vs. Balar Marketing Pvt.

Ltd. reported as (2008) 17 SCC 671.

16. In the case of Balar Marketing Pvt. Ltd. (supra), the Supreme

Court had observed 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". (emphasis added)

17. A similar view was expressed by the Supreme Court in a

recent decision in the case of Mount Mary Enterprises Vs. Jivratna

Medi Treat Private Limited reported as (2015) 4 SCC 182, where it

had turned down the objections raised by the respondent/

defendant therein that the amendment application filed by the

appellant/plaintiff in a suit for specific performance of a contract in

relation to the suit property, for enhancing the value of the property

in the plaint was belated and moved with oblique motives, and had

observed as below:

"2. The facts giving rise to the present litigation in a nutshell are as under: the appellant, who has been described as a plaintiff hereinafter, filed a suit against the present respondent, who has been hereinafter described as a defendant, for specific performance of a contract in relation to the suit property. The suit property was initially valued at Rs 13,50,000 (Rupees thirteen lakhs and fifty thousand only). The plaintiff, thereafter, realised that market value of the property in question was around Rs 1,20,00,000 (Rupees one crore and twenty lakhs only) and therefore, filed an application for amending the plaint. The said application for amendment was rejected by the trial court and thereafter, the aforestated writ petition was

filed by the plaintiff challenging the order rejecting the amendment application. The said petition has also been dismissed and therefore, the plaintiff has approached this Court and prayed that the impugned judgment confirming the order rejecting the amendment of the plaint be set aside and the plaintiff be permitted to amend the plaint so as to state correct value of the property in question, which is Rs 1,20,00,000.

xxx

7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant- plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

xxx

9. The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected.

xxx

11. In our opinion, on the basis of the aforestated legal position, the amendment application made by the plaintiff should have been granted, especially in view of the fact that it was admitted by the plaintiff that the suit property was initially undervalued in the plaint and by virtue of the amendment application, the

plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint.

12. For the aforestated reasons, we are of the view that the amendment application should not have been rejected by the trial court and the High Court should not have confirmed the order of rejection. We, therefore, set aside the impugned judgment [Mount Mary Enterprises v. Jivratna Medi Treat (P) Ltd., WP No. 12099 of 2013, order dated 10-3-2014 (Bom)] delivered by the High Court and the order dated 22-11- 2013 of the trial court, whereby the amendment application had been rejected".

18. The aforesaid decision is a reiteration of the settled legal

position that when a Court has the inherent jurisdiction to pass

certain orders even though it may not have the pecuniary or

territorial jurisdiction to try the suit, that would not be a ground to

disallow an amendment to the plaint, the logic being that one

cannot stick to the form of law to the point that the substance gets

obliterated. That would amount to missing the wood for the trees.

The object must be to abjure a pedantic approach and interpret

procedural rules with the idea of promoting the cause of justice and

shunning unnecessary and avoidable delay in the suit proceedings.

19. In the instant case, a commercial dispute has been raised by

the plaintiff. It is the plaintiff's stand that during the pendency of

the suit over the past seven years, its assessment of the monetary

losses sustained by it has undergone a sea change and by virtue of

the proposed amendments, it seeks leave to give a more realistic

figure of damages etc. that as per its estimate, the defendant ought

to be burdened with, if the suit is ultimately decreed in favour of the

plaintiff.

20. Having regard to the fact that the plaintiff has placed

sufficient and cogent material before the court for seeking

enhancement of the valuation of the suit and further, taking into

consideration the terminology used in the first proviso of Section 7

of the Act, which has clarified the ambiguity earlier existing in

Section 7 of the Ordinance, by spelling out that suits relating to

commercial disputes stipulated by an Act and filed and pending on

the original side of the High Court shall be heard and disposed of by

the Commercial Division of the High Court, there is no impediment

in allowing the present application. The amendments proposed in

paras 18, 21 & 22 of the plaint are permitted. The amended plaint

shall be filed within one week, with a copy to the other side.

21. The application is allowed and disposed of.

                                                         (HIMA KOHLI)
JANUARY 5, 2016                                            JUDGE
mk/sk/ap