MANU/DE/2328/2007

Equivalent/Neutral Citation: (2008)ILR 1Delhi408, MIPR2007(3)192, 2007(35)PTC 377(Del)

IN THE HIGH COURT OF DELHI

IA 9648-49/06 in CS (OS) No. 740/2006
Decided On: 10.08.2007
Hindustan Lever Limited Vs. Lalit Wadhwa and Ors.
Hon'ble Judges/Coram:
Vipin Sanghi, J.
Counsels:
For Appellant/Petitioner/plaintiff: Sudhir Chandra, Sr. Adv. and Praveen Anand, Adv
For Respondents/Defendant: C. Mukund and Neeraj, Advs.
Case Note:
Civil - Cause of action - Non-disclosure - Rejection of plaint - Order VII, Rule
11 of the Code of Civil Procedure, 1908 - Contention that the plaint liable to
be rejected since it does not disclose a cause of action and that this Court has
no territorial jurisdiction to entertain this suit and also that no action for
infringement of patent can lie against another patentee - Held, while dealing
with an application under Rule 11 of Order VII, in order to decide whether the
plaint discloses any cause of action or not, the Court has to examine only the
allegations made in the plaint and the documents filed with it - Averment
that the plaintiff has a valid patent and that the Defendant is infringing the
patent of the plaintiff have to be assumed to be true - It cannot be said that
the plaint on its reading does not disclose a cause of action against the
Defendants - Applications disposed of
Civil - Territorial jurisdiction - Section 20(c) of the Code of Civil Procedure,
1908 - Section 48 of the Patents Act - Defendants No. 3 is situated in
Bangalore and is not residing or working for gain within the territorial
jurisdiction of the Delhi High Court - Patent has been granted to the
Defendant by the Patent Office in Chennai - Defendant No. 2 neither has its
registered nor its corporate office within the territorial jurisdiction of this
Court - Contention was that the Defendants selling their product within the
jurisdiction of this Court was of no avail since the plaintiffs were not
marketing their products in Delhi - Held, as the Defendants were selling their
products in Delhi, infringement under Section 48 of the Patents Act has
Therefore, taken place in Delhi - As a part of cause of action had arisen within
the jurisdiction of this Court, the Court has territorial jurisdiction by virtue of
Section 20(c), CPC to entertain the present suit
Intellectual Property Rights - Exclusionary Right - Section 48 of the Patents
Act, 1970 - Section 28 of the Trademarks Act, 1999 - Held, Section 48 grants
the exclusive right to a patentee to prevent third parties, who do not have his
consent, from undertaking the making, using, offering for sale, selling etc. the
patented product in India - When a subsequent patentee brings an action for
infringement against an earlier patent holder, all that the Defendant can

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contend "as a ground for defense" in the suit, is that the Defendant has a
valid patent of earlier priority date - Not a ground to seek rejection of the
plaint at the threshold on the basis that no suit is maintainable for
infringement of patent against another patentee
Ratio Decidendi:
"Claims under a patent having an earlier priority date have specific protection
against any claim for patent having a later priority date."
"As a part of cause of action has arisen within the jurisdiction of this Court,
the Court has territorial jurisdiction by virtue of Section 20(c), CPC to
entertain the present suit."
JUDGMENT
Vipin Sanghi, J.
1. By this order I propose to deal with I.A. No. 9649/2006 filed under Order 7 Rule 11
CPC and I.A. No. 9648/2006, filed under Order 1 Rule 10 CPC by the defendants.
2 . By the aforesaid application under Order 7 Rule 11 CPC, it is contended that the
plaint is liable to be rejected since it does not disclose a cause of action; that the suit
has not been filed by a duly authorised person, and; that this Court has no territorial
jurisdiction to entertain this suit.
3. I.A. No. 9648/2006 has been filed to say that defendant No. 1 is neither a necessary
nor a proper party to the present suit and that he has been impleaded as defendant No.
1 merely to avoid the proceedings being noticed by the defendants in the cause list and
with a view to obtain an ex-parte ad interim order of injunction behind the back of the
defendant No. 2 and 3.
4. Taking up the application under Order 7 Rule 11 CPC first, I proceed to deal with the
objections that the plaint and the documents filed with it, do not disclose a cause of
action against the defendant.
5 . While dealing with an application under Rule 11 of Order 7, in order to decide
whether the plaint discloses any cause of action or not, the Court has to examine only
the allegations made in the plaint and the documents filed with it. Where the allegations
made in the plaint, prima facie, disclose a cause of action, the plaint cannot be rejected.
[See MANU/DE/0994/1995 : 60(1995)DLT271 ].
6 . The plaintiff states that it is carrying on the business of manufacture of various
consumer products. The present suit has been filed by the plaintiff seeking the relief of
permanent injunction, rendition of account and damages on the basis of the alleged
infringement of its patent in respect of a gravity fed water purification system, by the
defendants.
7. The plaintiff, it is averred, had in the year 2002 developed and invented a gravity fed
water purification system assuring a high degree of microbiological purity in the
drinking water it delivers. The plaintiff made application No. 539/MUM/2003 for patent
registration in India in June 2002. The said application was notified for opposition
purposes on 13th May 2005. It is averred that no opposition was raised by any third
party within the prescribed period and consequently the plaintiff were granted patent
number 198316 on January 9, 2006 which is still valid and subsisting. Corresponding

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International Application was also made with the European Patent Office on 31st
December, 2003.
8. The claim in the patent of the plaintiff's product reads as follows:
1.1) A gravity fed water purification system comprising a filtration unit adapted
to filter particulate material, and a Chemical purifying unit containing a
Chemical purifying agent, in which the Chemical purifying unit is house in a
sealed chamber and is in fluid communication with the filtration unit such that
water treated by the filtration unit is then gravity fed into the Chemical
purifying unit and retained therein for a predetermined period, after which the
water exits the system via a scavenger means which is adapted to recover
leached Chemical purifying agent.
2) A water purification system according to claim 1, which comprises a
purification unit comprising a top chamber and a bottom chamber, which are
separated by a partition, and in which the filtration unit is secured to the
partition and housed in the top chamber, and the Chemical purifying unit is
housed in the bottom chamber.
3) A water purification system according to claim 1 or claim 2, in which the
filtration unit comprises a carbon block.
4) A water purification system according to any one of claims 1 to 3, in which a
water exit passage from the Chemical purifying unit is provided in a
configuration such that water cannot exit through the water exit passage until it
has resided for a defined time in the Chemical purifying unit.
9. It is further averred that the plaintiff had invested over Rs.50 crores over the last two
years, immediately preceding the filing of the suit in manufacturing, marketing and
other activities related to its launch. It is further averred that the defendant No. 2
company is also involved in making water purification systems. The defendant have
launched, around September 2004, their water purification system under the name
"Forbes Aquasure". It is averred that the defendant's product directly infringes the
substance of the plaintiff's patent claim. The plaintiff has also produced a comparative
chart of the components of both products in paragraph 13 of the plaint. It is alleged
that upon enquiry it transpired that a patent application was filed in the name of
defendant No. 3, on or about 29th March, 2004 and notified in the official Journal dated
11th February, 2005. Since the Journal was published late, the plaintiff learnt of this
application only sometime in July, 2005. plaintiff carried out an inspection of patent
journals and found that there was no notification of a grant of patent on the said
application. Thereupon the plaintiff promptly made a representation of opposition to the
Controller of Patents, Chennai under Section 25(1) of the Patents Act which was filed on
18th August, 2005.
10. It is averred that the patent office did not notify the application of the defendant's
patent. It proceeded to grant a patent to the defendant, and by a letter dated 30th
September, 2005 and informed the plaintiff of the same. The plaintiff pointed out this
omission on part of the Controller of Patents by a letter dated the 18th October 2005
followed by reminders dated the 29th December 2005 and 3rd January 2006. It is
further averred that the Controller's office not only refused to act on the said
representations, but also refused to acknowledge the same. It is further averred that
defendant No. 3 failed to file their reply statement to the post grant opposition filed by
the plaintiff within the statutory period of two months which expired on 18th January,

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2006 upon which the patent of the defendants is deemed to be revoked. However, the
plaintiff was informed by a letter dated 21st April, 2006 that the patent office had
condoned the delay, and granted a further period of two months to the defendants to
file their reply statement and evidence.
11. The phrase "does not disclose the cause of action" as used in order 7 Rule 11(a)
has to be very narrowly construed. This power of rejection of the plaint ought to be
used only when the court is absolutely sure that the plaintiff does not have an arguable
case at all. [See MANU/MH/0112/2000 : AIR2000Bom161 ].
12. In the plaint as filed by the plaintiff, it asserts infringement of its patent by the
Defendant which is a matter that requires examination. For the purpose of examination
of the present application, the averment that the plaintiff has a valid patent and that the
defendant is infringing the patent of the plaintiff have to be assumed to be true. It
cannot be said that the plaint on its reading does not disclose a cause of action against
the Defendants. This argument of the Defendant is Therefore rejected.
1 3 . The other limb of the defendant's argument to content that the plaint does not
disclose a cause of action is that no action for infringement of patent can lie against
another patentee. It is argued that a patent for a particular product/process is granted
only for an invention which involves an inventive step, and only when there is a new
invention. The patent Act itself provides for rigorous mechanism for the examination of
all claims of new invention for grant of patent. The rights granted to a patentee under
Section 48 of the Patents Act can be enforced against a third party but not against
another patentee whose new invention is recognised by the fact that the patentee has
been granted a patent. It is argued that the Patent Act is a complete Code in itself which
empowers the Controller of Patent to effectively and judiciously determine whether or
not to grant a patent in a particular case. It is argued that the remedy available to the
plaintiff against another patentee is not by way of a suit for permanent injunction, since
the defendant patentee has absolute and unhindered right to market and sell its
products. It is argued that the right of the plaintiff, if any, to institute a suit for
infringement under Chapter xviii of the Patents Act cannot be superior to the protection
afforded to the defendant patentee, who has an equally valuable patent in its favor. It is
argued that if the defendant is not in a position to enjoy the privileges arising out of its
own patent, then the right of the defendant patentee to enjoy and exploit its patent
would become illusory. Since the right to institute a suit for infringement originates
from the right of the patentee to exploit its patent, it is argued that a patentee can
under no circumstances be an infringer. The Patents Act provides for both pre grant
opposition as well as post grant opposition under Section 25. So long as the
defendant's patent subsist he cannot be called an infringer and consequently, a suit for
infringement by another patentee is not maintainable. Reliance is placed on a couple of
decisions of this Court, Tobu Enterprises Pvt. Ltd. V. Megha Enterprises and Anr. (1983)
PTC 359 , Indo Asahi Glass Co. Ltd. v. Jai Mata Rolled Glass Ltd. and Anr.
MANU/DE/0111/1994 : 57(1995)DLT72 and S.S. Products of India v. Star Plast
MANU/DE/1174/2001 : (2001) 21 PTC 835 (Del), wherein courts have refused to grant
interim injunction against the defendant on the ground that the defendant also
possessed registration of its design. The same position, it is argued, should prevail in
respect of the defendant who has a registered patent.
14. On the other hand, it is argued by learned Counsel for the plaintiff that the grant of
a patent to a person does not entitled that patentee to infringe another patent. It is
argued that the right of a patentee is an "exclusionary right" in the sense that it confers
upon the patentee an exclusive right to prevent infringement of its patent by another. It

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does not confer the right to practice or use the invention. The plaintiff relies on the
wording of Section 48 of the Patents Act 1970 and contrast the same with Section 28 of
the Trademarks Act, 1999. While a patentee has the exclusive right to prevent third
parties from infringing the patent, a registrant of a trademark has the exclusive right to
use the trademark. The grant of a patent to the defendant gives no immunity or defense
in an action for infringement of the plaintiff's patent. Reliance is placed on "Patents For
Chemicals, Pharmaceuticals and Bio Technology' (IV Edition) by Phillip W. Grubb on
page 4 of the said commentary, the learned author states that:
Exclusionary Right
It is important to realise that the rights given by the patent do not include the
right to practice the invention, but only to exclude others from doing so. The
patentee's freedom to use his own invention may be limited by legislation or
regulations having nothing to do with patents, or by the existence of other
patents. For example, owning a patent for a new drug clearly does not give the
right to market the drug without permission from the responsible health
authorities, nor does it give the right to infringe an earlier existing patent. In
the very common situation where A has a patent for a basic invention and B
later obtains a patent for an improvement to this invention, then B is not free to
use his invention without the permission of A, and A cannot use the improved
version without coming to terms with B. A patent is not a seal of government
approval, nor a permit to carry out the invention. We very often hear 'This
patent allows Company X' to do something or other. It does not, it only allows
them to stop someone else from doing it. The right to prevent others from
carrying out the invention claimed in a patent may be enforced in the courts; if
the patent is valid and infringed the court can order the infringer to stop his
activities, as well as providing other remedies such as damages.
15. The plaintiff argues that the defendant is guilty of infringement of its patent, as the
defendant's product is clearly covered by the claims contained in the plaintiff's patent.
The plaintiff also argues that the defendants patent is subsequent to that of the plaintiff.
The plaintiff, by relying upon Section 45 of the Patents Act contents that the patent
dates back to the date of publication of the patent. The plaintiff's application was
published in December 2003, though granted in the year 2006, while the defendant's
application was published in March 2004, though granted in May 2005. The plaintiff
claims priority from 19th June 2002 whereas, according to them, the defendant's patent
is of 29th March 2004. plaintiff also relies on Alert India v. Naveen Plastics and Anr.
1997 (17) PTC 15, which holds that a prior proprietor of copyright in a design has a
preferential right over a later proprietor of the copyright in design.
1 6 . I find no merit in the aforesaid submission of the defendant that no action for
infringement of patent can lie against another patentee. As submitted by the plaintiff,
Section 48 of the Act grants the exclusive right to a patentee to prevent third parties,
who do not have his consent, from undertaking the making, using, offering for sale,
selling etc. the patented product in India. There is no exclusive right in the patentee to
make use of, offer for sale, sell or otherwise exploit the patented product in India. I find
myself in agreement with the statement of the law in the treatise of Philip W. Grubb
wherein he states that the right of a patentee is an "Exclusionary Right".
17. Section 107 of the Act, inter-alia, states that "In any suit for infringement of a
patent every ground on which it may be revoked under Section 64 shall be available as
a ground for defense" (emphasis supplied). Section 64 of the Patents Act enlist the

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various grounds on which the patent may be revoked. The first ground on which the
patent may be revoked, in substance, is that the patent of which revocation is sought is
in respect of an invention which is the subject matter of an earlier valid patent. This
means that even when a subsequent patentee brings an action for infringement against
an earlier patent holder, based on Clause (a) of Section 64(1) of the Act, all that the
defendant (earlier patent holder) can contend 'as a ground for defense' in the suit, is
that the defendant has a valid patent of earlier priority date. That can only be his
defense on merits but not a ground to seek rejection of the plaint at the threshold on
the basis that no suit is maintainable for infringement of patent against another
patentee.
18. Section 107A innumerate the acts, which are not considered as an infringements of
a valid patent. The manufacture of a patented product by the patentee is not considered
as an act which would not infringe the patent of another patentee. Had the Parliament
intended to protect the patent holder against an action for infringement by another
patentee, the same would have, in all probability found mention in Section 107A or in
some other provision of the Patents Act.
19. Section 108 enumerates the reliefs available to a plaintiff in a suit for infringement
and states that the reliefs that a court may grant in a suit for infringement may include
an injunction and, at the option of the plaintiff, either damages or on account of the
profits.
20. If the argument of the defendant is accepted, it would mean that first the plaintiff
should pursue its opposition to the patent of the defendant under Section 25(2), or seek
the revocation of the defendant's patent under Section 64, and only after the plaintiff
has succeeded in such proceedings finally, would be plaintiff be entitled to seek the
relief of injunction and damages or accounts of profits, or any other relief such as
seizure, forfeiture or destruction of the infringing goods. Such an interpretation would
lead to absurd results. By the time the defendants patent is revoked /cancelled, the
plaintiff's suit may itself become barred by limitation, if the plaintiff is first relegated to
proceedings under Section 25 or 64 before he is permitted to file a suit for seeking the
reliefs under Section 108 of the Patents Act. It also means that in the interregnum, the
plaintiff should continue to suffer without any remedy. In my view, the interpretation
canvassed by the defendant cannot be accepted for the reasons aforesaid.
2 1 . Reliance is placed by the defendant on the decisions of this Court in Tobu
Enterprises v. Megha Enterprises and Ors. 1983 PTC 359, and SS Products of India v.
Star Class (2001) 21 PTC 835 (Del), in support of the aforesaid submission. In my
view, these decisions do not advance the submission of the defendant, I may first deal
with the decision in Tobu Enterprises (Supra). Firstly, it may be noticed that this is a
decision under the Designs Act 1911 and not under the Patents Act. Under the Designs
Act 1911, the proceedings for cancellation of registration of Design lay before the High
Court under Section 51A of that Act, whereas under the Patents Act, a revocation
petition lies before the Appellate Board under Section 64. Tobu Enterprises (Supra) was
a case, where the plaintiff had not sought any relief for cancellation of the registration
of the Design of the defendant, whereas the defendant had already applied to have the
registration of the design of the plaintiff cancelled. Morever, the court was considering
the plaintiffs application under Order 39 Rule 1 & 2 CPC for grant of interim relief. The
court vacated the order of injunction earlier passed and proceeded with the hearing of
the suit. This is evident from the last paragraph of the judgment. Had the court
considered the issue of maintainability of the suit and decided the same against the
plaintiff, the plaint itself would have been rejected. Furthermore, the right of a patentee

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are governed by the specific provisions of the Patents Act. Unlike the Designs Act, 1911,
the Patents Act contains specific provisions such as Sections 107 and 107A discussed
above, which are relevant to decide the issue raised by the defendant. Tobu Enterprises
(Supra) proceeded on the basis; (a) that the earlier registration of a design does not
prevail over a subsequent registration of design, and, (b) that Section 53 of the Designs
Act, 1911 does not provide the remedy of injunction etc. to a registrant of an earlier
Design over a later registrant of another Design.
22. As noticed hereinabove, the claims under a patent having an earlier priority date
have specific protection against any claim for patent having a later priority date. This is
a fundamental difference in the present case, when compared to the statement of law
contained in Tobu Enterprises (Supra) pertaining to the Designs Act, 1911.
Consequently, the decision in Tobu Enterprises (Supra) in any case cannot be relied
upon in a case governed by the Patents Act. I may notice that Tobu Enterprises (Supra)
has been disagreed to by another single bench decision of this Court in Alert India
(Supra). However, I am not getting into the controversy, as to which of the two views is
correct, and whether the earlier or the later view is per in curium, since in my view it is
unnecessary for me to do so far the purposes of the present case. Moreover, being only
a tentative view on a prima-facie evaluation of the merits of the case, interim orders do
not constitute binding precedents, not even in the same case in which they may be
passed, much less in the facts of another case.
23. Since S.S. Products of India (Supra) is also a decision on an application under
Order 39 Rule 1 & 2 CPC, and not on the issue of maintainability of the suit, and it
relies on Tobu Enterprises (Supra), I need not separately consider it. Therefore, this
decision is also of no assistance to the defendant.
2 4 . So far as objection to the territorial jurisdiction of this Court is concerned, the
submission of the defendants/applicant is that a false averment has been made that
defendant No. 2 is manufacturing the water purifiers in question. It is asserted that to
the knowledge of the plaintiff it is defendant No. 3 which is the inventor of the product,
holder of the patent and manufacturer of the impugned product. Defendant No. 3 is
situated in Bangalore and is not residing or working for gain within the territorial
jurisdiction of this Court. The patent has been granted to the defendant by the Patent
Office in Chennai. It is also claimed that defendant No. 2 neither has its registered nor
its corporate office within the territorial jurisdiction of this Court. Defendant No. 1 has
been roped in only with a view to create jurisdiction in this Court, apart from preventing
the defendants from noticing the matter in the cause list in advance. It is also stated
that the averment that the defendants are selling their product within the jurisdiction of
this Court is of no avail since the plaintiffs are not marketing their products in Delhi.
Consequently, the plaintiffs are in no way suffering by the sale of the impugned product
in Delhi and no cause of action has arisen within the jurisdiction of this Court.
25. In reply, Counsel for the plaintiff has argued that, admittedly, the Defendants are
selling their impugned product within the jurisdiction of this Court. This raises a cause
of action in favor of the plaintiff, and this would give jurisdiction to this Court. Reliance
has been placed by the plaintiffs upon Pfizer Products Inc. v. Rajesh Chopra (2006) 32
PTC 301; L.G. Corporation and Anr. v. Intermarket Electroplasters (P) Ltd. and Anr.
(2006) 32 PTC 429; S. Oliver Bernd Freer GmbH & Co. K.G. v. Karni Enterprises and
Anr. (2006) 33 PTC 574.
26. It is contended that under Section 20(c) of the CPC a suit can be instituted in a
court within the local limits to whom jurisdiction the cause of action, wholly or in part,

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arises. Therefore, if the sale of its products by the Defendant constitutes an
infringement of the plaintiff's patent, that conduct of the defendants would constitute a
part of the cause of action, which has arisen in Delhi, and this Court would have
jurisdiction to entertain the present suit.
2 7 . The submission of the Defendants that no cause of action arises within the
jurisdiction of this Court because, according to the Defendants, the plaintiff has no sales
in Delhi, is to my mind unacceptable. Under Section 24 of the Patents Act, every patent
shall have effect throughout India. Under Section 48 of the Patents Act, the patentee of
a product has the exclusive right to prevent other parties, who do not have its consent,
from making, using, offering for sale, selling or importing for those purposes, the
product in India which is the subject matter of patent. Consequently, the patentee is
entitled to prevent other parties from offering for sale or selling the products which
infringe the patent in any part of India wherever they may be sold. Admittedly, the
Defendants are selling their products in Delhi. The infringement of the plaintiff's rights
under Section 48 of the Patents Act has Therefore, taken place in Delhi, assuming that
the plaintiff has a valid patent and that the defendants product infringes the same. It is
this infraction of the plaintiff's rights which would give the plaintiff the cause of action
to sue the Defendants to prevent the infringement of its patent. Consequently, I have no
hesitation in holding that a part of cause of action has arisen within the jurisdiction of
this Court and that this Court has the territorial jurisdiction by virtue of Section 20(c)
CPC to entertain the present suit. The decisions of this Court in LG Corporation (Supra),
Pfizer Products Inc. (Supra), S. Oliver Bernd Freer GmbH & Company KG (Supra), are
on the same lines.
28. Reliance placed by learned Counsel for the Defendant on a Full Bench decision in
Girdhari Lal Gupta v. K. Gian Chand Jain & Co. MANU/DE/0040/1978 :
AIR1978Delhi146 is misplaced. In Girdhari Lal Gupta (Supra) the court was considering
the question of territorial jurisdiction in respect of an application under Section 51A of
the Designs Act, 1911 for cancellation of the registration of the designs. Firstly, the
present is not an action to seek cancellation of the registration of the defendants patent.
In any event, and even if the ratio of that decision is applied, the same does not help
the defendants argument. The Full Bench held that an application under Section 51A
could be made to a High Court within the local limits of which, a part of the cause of
action and/or subject matter of the application may arise. The sale of the impugned
products in Delhi by the defendant does form part of the cause of action as already
noticed above. Consequently, the Full Bench decision is of no avail. The Division Bench
decision of this Court in Ajay Industrial Corporation, Delhi v. Mr. Shiro Kanao of Ibarak
City, Osaka, Japan 1983 PTC 245 is also a case relating to cancellation of a patent. It
holds that an action would lie within the jurisdiction of the court, inter-alia, where the
applicant (i.e., the applicant for revocation of patent) is made liable for infringement of
the patent. The court held that even though the applicant was facing action for
infringement only in Ahmadabad ,since he was selling the goods in Delhi, the Delhi
High Court would have jurisdiction to entertain the application for revocation since there
was a possibility that the applicant may face a similar action (by the patent holder) in
Delhi. The other decisions cited by the defendants on this aspect also do not appear to
be of any relevance in the facts of the present case.
2 9 . The last submission of learned Counsel for the Defendant in support of his
application under Order 7 Rule 11 CPC is that the suit has not been filed by a duly
authorized person. The plaint has been verified by Mrs. Madalsa Srivastava. However,
no power of attorney nor a Board Resolution authorising the said signatory to institute
the present suit has been filed on record.

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3 0 . This submission of the Defendants is also without any merit for purposes of
deciding the defendants application. As aforesaid, there is a categorical averment in the
plaint itself which states that Mrs. Madalsa Srivastava Product Development Manager,
Water, of the plaintiff has signed the plaint and instituted the present suit being duly
authorised and competent to do so on behalf of the plaintiff. This statement of the
plaintiff has to be accepted as correct for the present. This is also an issue which can
only be decided one way or the other after a trial and the plaint cannot be rejected at
this stage. Consequently I dismiss I.A. No. 9649/2006 with costs of Rs.20,000/-.
I.A. No. 9648/2006
31. The Defendants seek deletion of Shri Lalit Wadhwa from the array of Defendants
since it is claimed that he is neither the manufacturer, nor seller of impugned products
and he does not hold the patent which is alleged to have been infringed by the
defendants. It is asserted that his impleadment as a party Defendant has been resorted
to merely with a view to suppress the noticing of the case in the cause list and to obtain
an ex-parte ad interim order of injunction behind the back of the Defendants and also to
vest territorial jurisdiction in this Court. It is further averred that neither any cause of
action has arisen against Shri Lalit Wadhwa, nor any relief is sought against him.
Further ,no relief sought by the plaintiff can be personally enforced against Shri Lalit
Wadhwa.
32. In response learned Counsel for the plaintiff refers to Section 124 of the Patent Act
to contend that Defendant No. 1 is a necessary party since the said section states that
where an offence defined under the said Act is committed by a company, the company
as well as every person in-charge of the company for the conduct of its business at the
time of the commission of the offence shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly.
33. In my view, reliance placed from Section 124 of the Patent Act by the plaintiff is
fallacious since the said provision deals with penal liability under the said Act. The
company is a juristic entity and where the infringement of the patent has been alleged
against the company, its officers would not normally become personally liable in a civil
action. A reading of the plaint shows that no clear or specific averment has been made
against Defendant No. 1 about his role in the alleged infringement of the plaintiffs
patent. In my view, Defendant No. 1 is neither necessary nor a proper party to the suit
and consequently he is liable to be deleted from the array of Defendants.
34. I.A. No. 9648/2006 is Therefore allowed.
35. Let amended memo of parties be filed within one week.
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