SUN PHARMACEUTICAL INDUSTRIES LIMITED Vs. INDO PROTKEM LIMITED

JUDGEMENT

(1.) THIS application is filed by the applicant/plaintiff under Clause 12 of the Letters Patent Act to permit the plaintiff to file the suit against the respondents before this Court.

(2.) THE case in brief is as follows:- THE medicinal and pharmaceutical preparations are manufactured and marketed by the respondent using the impugned trade mark FEXTRAL and it is commercially sold in Chennai within the jurisdiction of this Court. THE invoice of M/s. Shanthi Medical, a pharmacy with its shop at 183, V.M. Street, Chennai is also produced by way of evidence. THE product of the respondent is sold by various other chemists also at Chennai and as such part of the cause of action had arisen at Chennai within the jurisdiction of this Court. THE respondents are carrying on business outside the jurisdiction of this Court and hence this application.

(3.) PER contra, the learned counsel for the respondents stated that the applicant as well as the respondents are residents of Mumbai and they are also carrying on business only at Mumbai within the Jurisdiction of Bombay High Court. Now, the applicant is seeking permission to institute the suit before this Court on the ground that the respondents are selling their product within the jurisdiction of this Court. The affidavit is vague and no particulars have been given. Even cause of action paragraph in the plaint is also silent and does not state how part of cause of action had arisen within the jurisdiction of this Court. Only if the applicant is able to establish that there is a commercial sale of the product of the respondents within the jurisdiction of this Court, then alone leave can be granted. No doubt, some invoice has been filed and the truth and validity cannot be considered at this stage. No doubt, a commercial sale cahe event of refusal of the prayer (iv) lastly he must show a clear necessity for affording immediate protection to save his right or interest which should other thanseriously injured or impaired. Explaning the term "irreparable injury". Spry says quoting Attorney General Versus Hallet as follows: