Delhi High Court
Poysha Power Generation P.Ltd. vs Doctor Morepen Ltd. And Anr. on 1 December, 2017
$~OS-15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.12.2017
+ CS(COMM) 809/2016
POYSHA POWER GENERATION P.LTD. ..... Plaintiff
Through Mr.Harish Malhotra, Sr.Adv. with
Mr.Simran Mehta and Ms.Priyanka,
Advs.
versus
DOCTOR MOREPEN LTD. AND ANR. ..... Defendants
Through Mr.Ashwini Mata, Sr.Adv. with
Mr.Mukesh Sharma, Mr.Shivansh
Gupta and Mr.Srijan Tiwari, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA No.6775/2017
1. This application is filed under Order 39 Rule 1 and 2 CPC seeking
multiple reliefs. The main relief which has been sought is that defendant
No.1 be directed to secure the alleged liability which has accrued till date,
being the profits from the sale of the product BURNOL from 1.5.2005 till
1.5.2017, by way of a bank guarantee. Other consequential directions are
also sought.
2. The plaintiff has filed the present suit seeking a decree of permanent
prohibitory injunction to restrain the defendants from infringing the
plaintiff's registered trademark BURNOL and from manufacturing and
marketing any pharmaceutical preparation including burns cream or
otherwise using the said mark in violation of the plaintiff's proprietary
CS(COMM) 809/2016 Page 1
rights. Other connected reliefs are also sought.
3. Alongwith the suit the plaintiff filed an application under Order 39
Rule 1 and 2 CPC seeking interim orders. This application was dismissed by
the learned Single Judge of this court on 18.4.2006. The learned Single
Judge recorded a finding in paragraph 42 that after considering all the facts
and reasons as given by Dr.Morepen (defendants) it appears that
Dr.Morepen has been able to discharge the heavy burden cast upon it to
show that the transaction entered into on 19.4.2004 was a nominal
transaction and the purpose of that transaction was entirely different from
what was purported to be. It was also noted that the plaintiff has not been
able to make out any case for grant of an injunction in its favour. It also
noted the submission of the defendant that it is maintaining proper accounts
of the sale of BURNOL burns cream. The court also held that in case Poysha
(plaintiff) succeeds in the suit it will be entitled to appropriate relief. It also
noted that balance of convenience does not lie in favour of Poysha, namely,
the plaintiff. In paragraph 44 the court noted as follows:-
"44. The balance of convenience certainly does not lie in
favour of Poysha. It has not, on its own showing,
commenced any business activity. The burns cream
BURNOL is a medicinal product that has been in use in
India for the last several years if not more. If its
manufacture and production is stalled because of the
inability of Poysha to manufacture the product, it will
cuase irreparable injury to consumers of the burns cream.
Consequently, it will be in the interest of consumers, if
the position as it exists today is allowed to continue till
the disposal of the suit. Poysha has not been able to show
how it will suffer any irreparable loss and injury if the
injunction prayed for is not granted."
CS(COMM) 809/2016 Page 2
4. Against the above order an appeal was filed before the Division
Bench which was disposed of by a consent order on 7.9.2012. The Division
Bench disposed of the appeal on the following terms:-
"(i) The evidence in Suit No. 1140/2005 and Suit No.
1276/2005 be recorded at the earliest point of time. Learned
counsel agree that the examination and cross-examination of
the respective witnesses would be concluded on or before
30.04.2013. Thereafter, the matter would be listed before
the concerned Court for final disposal.
(ii) Doctor Morepen Ltd. shall maintain true and faithful
accounts pertaining to the trademark and brand which is the
subject matter of the pending suits, i.e. BURNOL . To that
end, it shall file an affidavit of its authorised director or
person incharge. The affidavit shall undertake, in the event
of an adverse decree for accounts being issued by the Court
in any of the pending proceedings against the said defendant,
Doctor Morepen Ltd. shall satisfy the same out of the assets.
The affidavit shall also enclose a copy of the Board
Resolution authorizing the said Director to file an affidavit.
Further, the affidavit shall undertake to file before the Court
audited accounts of the company that Doctor Morepen Ltd.
periodically, in every quarter, with a copy to the learned
counsel for the plaintiff in all the pending suits. The above
arrangement shall continue and bind the parties till the
disposal of the suits pending before the learned Single
Judge. It is clarified that the observations by the learned
Single Judge in the impugned judgment were in the context
of the rival claims made by the parties in the proceedings.
Since the issues in the suit are yet to be finally decided,
nothing stated in the order or in the order of the learned
Single Judge shall be treated as reflecting the merits of
the case entitling either parties to use it in any other case.
The appeals are disposed of in the above terms."
5. The grievance of the plaintiff now is that in the Statement of Accounts
CS(COMM) 809/2016 Page 3
that are being filed by the defendant show that the defendants have earned
roughly Rs.60 crores from sale of BURNOL from the date of filing of the
suit in 2005. Reliance is also placed on the balance sheets of the defendant
to state that the tangible assets of the defendant are only Rs.2.41 crores and
the defendants have suffered losses of Rs.2.8 crores. Based on this, it is
pointed out that there is urgent need to pass directions to the defendant to
secure the claim of the plaintiff. It is urged that in the eventuality a decree is
passed in favour of the plaintiff, the plaintiff would have no means to
recover the dues.
6. I have heard learned senior counsel for the parties.
7. I am not inclined to pass any orders in the present application. Firstly,
the Single Judge of this court has given a categorical finding holding that the
plaintiff has failed to make out any prima facie case in its favour or that
balance of convenience in their favour. Hence, in the light of that finding, it
would not be proper to impose onerous conditions on the defendant.
8. Secondly, I am told that the evidence has progressed effectively. The
evidence of the plaintiff has been completed and the evidence of the
defendant is likely to be concluded soon. The suit being at the final stage it
would not at this stage be proper to grant relief sought for by the plaintiff.
9. Thirdly, in any case the appeal that was filed by the plaintiff was
disposed of by a consent order by the Division Bench on 7.9.2012. I see no
compelling reason or justification to modify or add to the aforesaid agreed
orders as was passed by the Division Bench.
10. In the context of giving security, as sought by the plaintiff, the
Division Bench of this Court in Ajay Singh and Ors. Vs. Kal Airways
Private Limited and Ors. 2017 (4) Arb.LR 186 (Del) noted that the issue of
CS(COMM) 809/2016 Page 4
injunction as sought for by a plaintiff is a matter of the weight to be given to
the materials on record and that it is a fact dependent exercise. The Division
Bench held as follows:-
"Though apparently, there seem to be two divergent strands of
thought, in judicial thinking, this court is of the opinion that the
matter is one of the weight to be given to the materials on
record, a fact dependent exercise, rather than of principle. That
Section 9 grants wide powers to the courts in fashioning an
appropriate interim order, is apparent from its text.
Nevertheless, what the authorities stress is that the exercise of
such power should be principled, premised on some known
guidelines - therefore, the analogy of Orders 38 and 39.
Equally, the court should not find itself unduly bound by the
text of those provisions rather it is to follow the underlying
principles........"
11. In my opinion, in the facts of this case, the plaintiff has failed to make
out a case whereby this court may exercise discretion and direct the
defendant to give security as sought for.
12. Accordingly, I see no merits in the present application and the same is
dismissed.
CS(COMM)809/2016
List on 21.2.2018.
JAYANT NATH, J
DECEMBER 01, 2017
n
CS(COMM) 809/2016 Page 5
