Msd Oss B.V vs Reliance Life Sciences Pvt Ltd
2018 Latest Caselaw 4711 Del

$~OS-15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                               Date of decision: 10.08.2018
+     CS(COMM) 1053/2016
      MSD OSS B.V                                         ..... Plaintiff
                           Through       Mr.Sudhir Chandra, Sr. Adv. with
                                         Mr.Pravin anand, Ms.Udita Patro and
                                         Mr. Shamim Nooroyozdan, Advs.

                           versus

      RELIANCE LIFE SCIENCES PVT LTD          ..... Defendant
                    Through   Mr. Sudhanshu Batra, Sr. Adv. with
                              Ms.Bitika Sharma,       Ms.Anusuya
                              Nigam, Ms.Ruchika Wadhawan,
                              Mr.Aditya Mishra and Ms.Sahiba
                              Pantel, Advs.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

IA No. 2037/2018
1.

This application is filed under Order 6 Rule 17 CPC to bring on record the change in the title of the suit patent.

2. It has been pleaded that the plaintiff-MSD OSS BV merged into Organon BioScience Nederland BV and pursuant to that merger the patentee of the suit patent became Organon BioScience Nederland BV. Subsequently, Organon BioScience Nederland BV merged into Merck Sharp & Dohme BV who has now become the patentee of the suit patent and hence, the present application to substitute the original plaintiff with the amalgamated Merck

Sharp & Dohme BV.

3. The present suit has been filed seeking a decree of permanent injunction to restrain the defendant from using, selling, distributing, etc. any product that infringes the plaintiff's Indian Patent No.224609. Other connected reliefs are also sought.

4. This court on 12.04.2018 had heard arguments on this application and had noted the submission of the learned senior counsel for the plaintiff that though the application is labelled as under Order 6 Rule 17 CPC but in fact what is being sought is only the relief under Order 22 Rule 10 CPC, namely, substitution of the plaintiff with Merck Sharp & Dohme BV in which the plaintiff has merged/amalgamated. It is also stated that as the relief under Order 22 Rule 10 CPC is only being sought in the present application there would be no need to take on record the amended plaint which has been filed along with the present application in view of the fact that the said amended plaint contains averments other than pertaining to substitution of the plaintiff. This court had directed the plaintiff to produce in court documents forming basis of the claim for substitution.

5. The documents have now been produced.

6. Learned senior counsel for the plaintiff has submitted that the necessary changes have also been made by the Patent Office and in the records of the Patent Office, necessary substitution has been made substituting the name of the patentee as Merck Sharp & Dohme BV. It has also been pleaded that the delay in moving the present application was only inadvertence and nothing more.

7. Learned senior counsel for the defendants has strongly opposed the present application. He has firstly submitted that this court has to first see

the documents relied upon by the plaintiff to claim merger and the fact that the rights have been taken over by the new entity i.e. Merck Sharp & Dohme BV. He further submits that there is a delay of five years in moving the present application and there is no plausible explanation given as to why this delay has been cause. He relies upon the judgment of the Division Bench of this court in Yapi Kredi Bank (Deutschland)AG vs. Ashok K.Chauhan & Ors., ILR (2013) II Delhi 841 to submit that while dealing with an application under Order 22 Rule 10 CPC, the court would have to necessarily embark on an inquiry albeit a prima facie or rudimentary one to decide if indeed the applicant concerned is the successor entitled to the carriage of the legal proceedings. He also relies upon the judgment of the Karnataka High Court in Akka Bai & Anr. Vs. Gowrawwa, AIR 1990 Kant. 278 and the judgment of the Madhya Pradesh High Court in Devisahai Premraj Mahajan vs. Govindrao Balwantrao & Ors., AIR 1965 MP 275 to contend that where there is a delay, the applicant would have to explain the reasons why this delay is caused.

8. The Division Bench of this court in Yapi Kredi Bank (Deutschland)AG vs. Ashok K.Chauhan & Ors.(supra) has held as follows:-

"23. In the opinion of this Court, the law declared by the Supreme Court regarding the legal effect of a merger, or scheme of amalgamation, upon pending proceedings, in Bhagwan Das Chopra (supra) that "subject to such terms it becomes liable to be impleaded or becomes entitled to be impleaded in the place of or in addition to the transferor company or corporation in any action, suit or proceeding, filed against the transferor company or corporation by a third party or filed by the transferor company or corporation against a third party and that whatever steps have already taken place in those proceedings will continue to operate

against and the binding on the transferee company or corporation in the same way in which they operate against a person on whom any interest has devolved in any of the ways mentioned in Rule- 10 of Order-22 of Code of Civil Procedure, 1908" affords the clearest guidance in such circumstances. Neither Saraswati Investment Syndicate, nor Singer nor any of the decisions is a direct authority on the question of succession to legal proceedings before a civil court. Even though Bhagwan Dass was rendered in the context of industrial adjudication, the Court expressly relied on Order 22 Rule 10, and spelt out its application in these circumstances. For these reasons, the conclusion of the learned Single Judge that as the suit had abated under Order 22 Rule 3, CPC, resulting in the consequent inapplicability of Order 22 Rule 10, appears to be based on a textual reading of that provision. Order 22 Rule 10, CPC applies in cases like the present; the Court would have then, to necessarily embark on an inquiry - albeit a prima facie or rudimentary one, to decide if indeed the applicant concerned is the successor entitled to the carriage of the legal proceeding, i.e the suit. In fact, though in General Electric Canada Inc (supra) the learned Single Judge seems to rely on the proposition of corporate death, the decision itself indicates that the terms of amalgamation were considered, and the claim to succession (of the applicant) was turned down."

9. In the present case, the plaintiff has placed on record the documents showing the amalgamation which has been pleaded in the application.

10. Copies of the deed of merger of MSD OSS BV with Organon BioScience Nederland BV dated 01.01.2013 and the deed of merger of Organon BioScience Nederland BV merged with Merck Sharp & Dohme BV dated 02.01.2013 along with English translation have been placed on record. That apart, along with this application, the plaintiff has attached a certified copy of the e-Registrar issued by the Patent Office showing that the name of the patentee is now Merck Sharp & Dohme BV.

11. In my opinion, prima facie it appears that the submissions of the

plaintiff are correct, namely, that the rights of the original plaintiff are now vested in Merck Sharp & Dohme BV. That apart, there has been no objection by any other entity claiming to be a patentee of the said patent.

12. Regarding delay, the Madhya Pradesh High Court in Devisahai Premraj Mahajan vs. Govindrao Balwantrao & Ors.,(supra) has held as follows:

"39. The learned counsel for Motilal invited our attention to the observations of Puranik J. in Wright Neville v. Freser, ILR (1944) Nag 520: (AIR 1944 Nag 137) laying down that there being no limitation prescribed for an application under Order 22 Rule 10 of the Civil Procedure Code, a transferee pendente lite could be allowed to be impleaded even at the appellate stage. It is true that as suggested by Puranik J., the discretion has to be exercised judicially and the fact that an application is made at the appellate stage is no bar to the allowing of a party to be impleaded at the appellate stage. However, the question will be one of due diligence. If a transferee is guilty of unreasonable delay and he waits and watches the proceedings without making an attempt to be impleaded, and later on he files an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained silent, his prayer to be impleaded at a late stage can evidently not be allowed. This case has been referred to with approval in Lakhshmi Narain v. Babu, AIR 1946 Lah 38 and T.K. Chakrapani Iyer v. Ammalu Amma, AIR 1949 Mad 870, We are in agreement with the observations made by the learned Judge; and while endorsing the same, we are of opinion that in the present case Motilal has been guilty of undue and unreasonable delay in applying for being impleaded at a late stage, although he was aware of the litigation and he merely watched and waited."

13. The facts of the above case were that the suit was filed before 1951 whereas the applicant moved an application under Order 22 Rule 10 CPC in 1962. The court was of the view that the applicant was fully aware of the

pendency of the proceedings and had been watching the litigation and had chosen to get impleaded at a late stage. He knew about the proceedings and transfer of interest. In the meantime, the owner of the house Sardar Govindrao had created transfer of interest to different persons. The applicant became a decree holder, auction purchaser in execution of his own decree for a nominal sum of Rs.300/-. He did not approach the trial court for being impleaded but came at the appellate stage to create complications and to have rights of redemption as against the mortgagor. Clearly, the above observations were made by the Madhya Pradesh High Court in a case where there was a title dispute between the applicant and one of the parties.

14. The above judgment referred to by the learned senior counsel for the defendant would not be applicable to the facts of the present case. In the present case, there is no such dispute between the applicant who has moved the application under Order 22 Rule 10 CPC and the original plaintiff.

15. Similarly, the Karnataka High Court in Akka Bai & Anr. Vs. Gowrawwa (supra) has held as follows:-

"9. We have in this case already pointed out, there is a lapse of nearly four years before an application is made for impleading and that too at a stage when the appeal is being settled out of Court. In some what similar circumstance, a Division Bench of the High Court of Madhya Pradesh in the case of Devisahai Premraj v. Govindrao Balwantrao, ruled as follows:

(g) Civil P.C. (1908) O. 1 R. 10(2) O. 22 R. 10 and O. 41 R. 20 -- Addition of parties -- Discretion of Court -

- Transferee, pendente lite Application for being added as a party at appellate stage -- If can be allowed.

So far as allowing a party to be impleaded under Order 1 Rule 10(2) or Order 22 Rule 10, or Order 41 Rule 20 is concerned the discretion has to be exercised by the court judicially.

There is no bar of the transferee pendente lite being impleaded as a party under O. 22, R. 10 at the appellate stage. However, the question will be one of due diligence. But if he is guilty of unreasonable delay and waits and watches the proceedings without making an attempt to be impleaded and later on files an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained silent, his prayer to be impleaded at a late stage can evidently not be allowed.

16. In the said case the impleading applicant had pleaded that pursuant to an assignment deed, the respondent had assigned all his rights, title or interest in favour of the impleading applicant. Hence, the impleading applicant had moved the application under Order 22 Rule 10 CPC to state that he was entitled to come on record to resist the appeal and any compromise decree that was sought to be passed between the appellant and the respondent. The respondent had denied the rights of the impleading applicant. The above observations were made in the light of the fact that there is a title dispute between the impleading applicant and the respondent.

As noted above in this case, the facts are different inasmuch as there is no dispute between the applicant and the plaintiff.

17. At this stage, learned senior counsel for the plaintiff has relied upon judgment of this court in Syndicate bank vs. Hindalco Industries ltd. & Anr., 2014 (144) DRL 243 to contend that this court has allowed the delay in filing up to 7 years also. Learned senior counsel for the plaintiff has

reiterated that it is a case of inadvertence and nothing more.

18. In my opinion, no prejudice is caused to the defendant on account of the delay in moving the present application. Costs can be imposed to compensate the defendant for the delay.

19. Accordingly, I allow the present application to the extent the name of the plaintiff is substituted with the new entity, namely, Merck Sharp & Dohme BV subject to payment of costs of Rs.25,000/-.

20. Amended memo of parties is taken on record.

21. In this application, there is another prayer sought, namely, to take on record the supplementary evidence of the plaintiff's witness PW-1. Liberty is granted to the plaintiff to file a detailed affidavit in this regard of its additional witness separately along with an appropriate application. Such an application when filed will be dealt with as per law.

22. The application stands disposed of.

JAYANT NATH, J.

AUGUST 10, 2018 Rb