RAJEEV INDRAVADAN MODI Vs. INSTANCE LABORATORIES PRIVATE LIMITED

JUDGEMENT

(1.) This is a revision application preferred by the revisioners, who are the original plaintiffs in Civil Suit No. 11 of 2000 pending in District Court, at Vadodara. That suit is preferred by the plaintiffs alleging infringement of Registered Patent No. 183097 dated March 19, 1998, possessed by the plaintiffs by the defendants. In that suit, application for interim injunction was tendered and the learned Assistant Judge, Vadodara, granted ad-interim injunction in favour of the plaintiffs against the defendants. The defendants, in reply to the said application, filed an affidavit-in-reply, at Ex. 24, to resist that application and to get the ad-interim order vacated. In that reply, certain contentions were raised which, according to the plaintiffs, amounted to praying for revocation of the patent. According to the plaintiffs, it was a counter-claim for revocation, and therefore, by virtue of proviso to Sec. 104 of the Patents Act read with Sec. 64 of the said Act, the suit was required to be transferred to the High Court by the Court below. The plaintiffs, therefore, tendered application Ex. 47 seeking the relief of transfer of the suit. The said application was strongly objected to by the defendants and the trial Court, after considering rival side contentions, rejected the plaintiffs' application for transfer of the suit by order dated January 9, 2001.

(2.) Aggrieved by the said order, the plaintiffs have preferred this revision application under Sec. 115 of the Code of Civil Procedure.

(3.) Learned Counsel, Mr. B. J. Shelat, appearing with Mr. Y. J. Trivedi, submitted that the Court below has committed a jurisdictional error by not transferring the suit to the High Court. In support of his say, Mr. Shelat submitted that there is no dispute about the plaintiffs' holding a registered patent in respect of a process. The patent was granted by the Controller of Patents after following due procedure. He submitted that, the Court below has misread and misinterpreted the affidavit-in-reply filed by the defendants at Ex. 24. In the affidavit-in-reply, the defendants have come with a specific case of improper grant of patent and their intention of going for revocation of the patent granted to the plaintiff. The trial Court, in the impugned order, has observed that the defendants have no intention to make any counter-claim for revocation of the patent of the plaintiffs before this Court and if the defendants want to make the counterclaim, then it must be specifically stated so in the affidavit-in-reply, otherwise the counter-claim would not be in conformity with Rule 6B of Order 8 of the Code of Civil Procedure. Mr. Shelat submitted that this is an error committed by the Court below. He submitted that only those provisions of the Code of Civil Procedure are to be read which do not go contrary to the special Act, namely, the Patents Act. Mr. Shelat submitted that Secs. 104, 107, 108 and 116 are to be read with Sec. 64, which would indicate that, if in substance, the dispute between the parties is regarding improper grant of patent or revocation of such patent, the jurisdiction lies only with the High Court and when the defendants have expressly indicated their intention in the affidavit-in-reply of moving an appropriate application for revocation of the patent, the Court ought not to have taken a technical view of the matter, stating that no such application has been made. For counter-claim, no form is prescribed and no specific nomenclature is required to be given to the defence taken by the defendants. Whether it is a written statement or an affidavit-in-reply, in substance, it divulges the defence of the party and it should have been accepted to be covered under the provisions of Sec. 104 of the Patents Act. That having not been done, the Court below has committed error in not transferring the suit.