NOVARTIS A G Vs. WANDER PVT LTD

JUDGEMENT

(1.) Although the application, which we propose to decide is for condonation of delay in the filing of the Appeal, some of the facts of the dispute need to be narrated. The Appellant had filed a Suit against the Respondent praying that the latter be injuncted from using the word ,,Wander and/or using the trademark ,,Triaminic, ,,Triominic, ,,Triatussic or ,,Wander or any other deceptively similar marks. A Compromise Application under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (CPC for short) came to be filed between the parties. One of the terms of the Compromise was that the Respondent/Defendant would, before 1.8.2004, cease from using these epithets and would take appropriate steps for an amendment in its Corporate name. It appears that none of the names of the drugs/medicines in question have been used as per the Compromise. The dispute pertains to the alleged failure to change the corporate name within the period stipulated in the Compromise. The learned Single Judge noted that a distributorship and marketing agreement has admittedly been entered into, and that this fact alone signifies the satisfaction of the Decree Holder/Appellant that the Respondent/Judgment Debtor has complied with the obligation in the Compromise Application. The finding has been returned that "Clause 4 as interpreted literally has admittedly been complied by the judgment debtor. The contention of senior counsel for decree holder of clause 4 being required to be read as requiring the judgment debtor to ensure change of name by 1st August, 2004, is not found tenable". The detailed Judgment analyses all relevant precedents on the issue of the executability of the Decree. The learned Single Judge has held that there is no decree for 5,00,00,000/- as claimed by the Decree Holder which can be executed and that the only Decree pertains to relief of permanent injunction, and that so far as compliance with the injunction is concerned, this was carried out by the Respondent Company.

(2.) It is in this background that the subject application for condonation of delay must be decided. There is admittedly a delay of 99 days in filing the Appeal. The reason given is that the certified copy of the impugned Order was received by the Appellant on 28.5.2009. After deducting the period spent in awaiting the certified copy, the period of limitation would have expired during the Summer Vacation and hence the Appeal ought to have been filed on the first day of reopening. The case made out by the Appellant is that it had sought legal opinion which "was delayed on account of long summer vacation in the month of June. Subsequently, due to a lapse of the counsel, the period of limitation for filing the appeal unfortunately elapsed as the counsel focused on obtaining/preparing an opinion in the matter since the Appellant as a foreign company has strict financial and corporate rules and guidelines that require them to carry out due diligence especially with regard to legal proceedings".

(3.) The relevant legal Opinion was initially kept in a sealed cover as "strict confidentiality" was thought prudent by the Appellant, which we find lacks any semblance of merit or justification. Eventually, a copy was ordered to be made available to the Respondent who has thereafter filed a Reply to the Application opposing the condonation of delay in filing the Appeal. The legal opinion was given by a lawyer practicing in the High Court of Delhi and is dated 26.8.2009, that is, much after the reopening of the Courts after the Summer Vacation. No satisfactory explanation is forthcoming as to why there was such a delay in obtaining this legal opinion. There is no justification to permit foreign companies or multinational companies extra latitude for filing appeals beyond the period prescribed in the Limitation Act, 1963 ostensibly that such action is taken after considerable consideration. No sufficient cause has been disclosed for condonation of delay in filing the Appeal.