HINDUSTAN LEVER LIMITED Vs. CAVIN KARE LIMITED

JUDGEMENT

(1.) The Court: Both the aforesaid two applications and connected interlocutory applications are heard together and are disposed of by this common Judgment and order. Both the two contempt applications have arisen out of an undertaking given by the respondents dated 18th of July, 2000 in Suit No. 17 of 2000 and G.A. No. 276 of 2000. The petitioner herein being a registered patentee approached this Court with the aforesaid action alleging infringement of patent by the defendant. Cavin Kare Limited. In the said suit appropriate interlocutory application was taken out by the plaintiff and this Court granted appropriate interlocutory relief. During pendency of the suit and the connected interlocutory applications the parties themselves compromised outside the Court and put in terms of settlement or compromise. In the terms of settlement written undertaking was recorded. On the aforesaid date undertaking was also given before this Court apart from having recorded and signed the terms of settlement, by the appropriate officials of the defendant who are also respondents in this matter. The text of the undertaking recorded in terms of settlement and having been accepted before this Court by the officials of the respondents are set out hereunder:

(2.) On or about 21st December, 2000 the petitioner filed the first contempt application (380 of 2000) alleging wilful and deliberate breach of the undertaking by manufacturing and marketing Fairever Fairness Cream using Silicone Oil Compound, Niacinamide Parsol MCX and Parsol 1789 infringing the range of the aforesaid components as mentioned in the patent of the petitioner and the same was to be found in the product, covered by batch No. 156. It is stated in the petition that upon procurement of the samples of the said cream under the aforesaid batch the same was tested in their laboratory as well as in the laboratory outside. On such test it was found that the respondents in gross breach of the aforesaid undertaking used aforesaid ingredients infringing and offending the range of the patent. The petitioner thereafter prayed for issuance of Rule as against the respondents and also for interlocutory relief. This Court also granted interim relief by way of injunction and thereafter the Special Officer was also appointed. During pendency of the aforesaid first contempt application second contempt application was taken out being C.C. 154 of 2001. In the second application similar complaint was made and this time it was detected that the respondents have manufactured and marketed their skin cream under the batches Nos. 192 of November, 2000, 226 of December, 2000, 001 of January, 2001 and 22 of February, 2001. The petitioner in support of his allegations also furnished test report carried out by its own laboratory as well as laboratory of the national repute outside. In the second application this Court having been satisfied with the prima facie case issued Rule likewise the first contempt application. The interlocutory applications were taken out for appropriate reliefs for effective adjudication of both the contempt applications.

(3.) The respondents, apart from making various applications for vacating and/or discharging interim order passed in the contempt proceedings, made two applications for discharging of the Rule alleging that no contempt proceedings shall lie on the plea that undertaking recorded in the compromise, was given to the party petitioner and not to the Court. Such an undertaking cannot be enforced in the contempt jurisdiction and the same can be brought into action in some other proceedings. This Court heard this question, by a Judgment and order dated 16th July, 2003 held that undertaking recorded in the said compromise was given to the Court, not to the parties. The respondents appealed against this Judgment and order unsuccessfully and an attempt was made to assail the same by filing a special leave petition before the Hon'ble Supreme Court. However, the said special leave petition was rejected upon withdrawal of the same. Thus, this matter was heard on merit after the respective affidavits having been filed.