HYDERABAD CHEMICAL SUPPLIES LIMITED Vs. UNITED PHOSPHORUS LIMITED

JUDGEMENT

(1.) Heard Sri Y.J Trivedi, the learned Counsel representing the petitioner and Sri Rajeev Naiar, Counsel representing the respondent.

(2.) Sri Y.J.Trivedi, the learned Counsel representing the petitioner made the following submissions. The learned Counsel would maintain that the Original Petition is filed by Hyderabad Chemical Supplies Limited, Hyderabad, Andhra Pradesh, praying for revocation of the patent. The learned counsel also would maintain that Section 107 of the Patents Act, 1970, hereinafter in short referred to as "Act" for the purpose of convenience, deals with suits for infringement of patents. The Counsel also would maintain that the restraint order which is passed in relation to the breach of earmark in C.S.No.25-A/2004 by the District Court, Indore is totally for a different purpose and the scope and the ambit of the said suit a/so being different, the said order would not come in the way of granting suspension as prayed for in the present application. The learned Counsel also had explained the meaning of the word or expression "patent" and had drawn the attention of this Court to Section 9(3) and Section 9(4) of the Insecticides Act, 1968. The Counsel would further maintain that in the light of the clear provisions specified under Section 64 of the Act, this O.P. is maintainable only before this Court and this Court is having jurisdiction also to entertain the O.P. Merely because a Suit had been instituted on the file of the District Court, Indore, that does not mean that this Court has no jurisdiction especially in view of the fact that the petitioner-Hyderabad Chemical Supplies Limited, Hyderabad is within the jurisdiction of this Court and likewise the 1st respondent-United Phosphorous Limited, Mumbai is having its branch of operation office at Hyderabad. The learned Counsel placed reliance on certain decisions also to substantiate his contentions. While further elaborating his submissions, the learned Counsel had drawn the attention of this Court to para-6 Ground (K) and would contend that in the light of the specific stand taken inasmuch as it is not a new invention or is not a novelty hence the same would not fall under "patent" and in that view of the matter, the Certificate to be suspended pending the main O.P. The learned Counsel while further making his submissions would contend that it may be that in relation to trademarks an Appellate Board had been constituted at Chennai and as far as patents are concerned the same had not been notified. Even otherwise, the learned Counsel would contend that in the light of the clear language of Section 117G of the Act, it is highly doubtful whether matters of this nature can be transferred at all to the said Appellate Board. The learned Counsel placed reliance on certain decisions also in this regard.

(3.) Per contra, Sri Rajeev Naiar, the learned Senior Counsel made the following submissions. Initially the Counsel would maintain that the O. P. itself is not maintainable inasmuch as the Appellate Board had been constituted and the same is functioning and in view of the same and also n the light of the language of Section 117-G of the Act all these matters pending on the file of the respective High Courts also to be transferred to the Appellate Board. The learned Counsel also had taken this Court through the language of Section 64, Section 117-C, Section 117-D, Section 117-G, Section 116 of the Act and had explained the scope and ambit of the Act and also would maintain that the Intellectual Property Appellate Board at Chennai alone would have jurisdiction at present to adjudicate upon the question in controversy which is the subject matter of the present O. P. and hence the O. P. is liable to be transferred atomatically. The counsel also while further making his submissions had taken this Court through the relevant portions of the plaint and also written statement and the stand taken by the respective parties and would contend that the 1st respondent is the plaintiff in the said Suit pending on the file of District Court, Indore wherein a restraint order was obtained as against the petitioner herein as respondent/ defendant in the said Suit and the same was carried even by way of Appeal wherein also the said party was unsuccessful. With all emphasis, the learned Counsel would contend that conflicting orders cannot be passed and in fact certain of the facts had been suppressed. The fact relating to the disposal of the matter by High Court, Indore Bench had not been specifically pleaded nor it was brought to the notice of this Court and it would amount to suppression of fact. The learned Counsel also would maintain that the substance of the pleading may have to be taken into consideration and the revocation of the patent also had been made the lis between the parties before the District Court, Indore and in the light of the same it cannot be said that the subject matter is something different or the reliefs prayed for would be something different and if the substance is taken into consideration when a Suit virtually claiming for the same relief at least in substance is pending on the file of the District Court, Indore, it is not just and proper on the part of the petitioner to approach this Court by filing O.P. under Section 64 of the Act stating that the grounds are different or the reliefs prayed for also are different. The learned Counsel also had pointed out to the rejoinder filed and the contents thereof. While further elaborating his submissions, the learned Counsel raised the aspect of operation of estoppel and placed reliance on a decision in this regard. While elaborating his further submissions the Procedure for revocation had been well explained and the Counsel also would further contend that Section 64 of the Act does not contemplate interim suspension and when the main relief which had been prayed forand the interim relief which had been prayed for virtually would be one and the same, it would be always just not to grant any relief and the better way would be to dispose of the main O.P. itself. The learned Counsel also made it clear that it would be proper for the parties to let in further evidence if they choose to do so and it would be just to dispose of the main O.P. itself after recording such evidence if necessary inasmuch as the knowledge relating to the patent being a question of fact it is a matter to be decided on recording evidence and proper findings and the Certificate in relation to Indofil Chemical Company and other aspects may have to be gone into at the appropriate stage and not at this stage. The learned Counsel also had relied upon an order made in the Writ Petition on the file of Delhi High Court where certain directions had been given in relation to the appointment of Members of the Intellectual Property Appellate Board.