Delhi High Court - Orders
Him Bio Agro vs Sulphur Mills Limited & Anr on 22 April, 2022
Author: Najmi Waziri
Bench: Najmi Waziri, Swarana Kanta Sharma
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 85/2022& CM APPLs. 18677/2022, 18678/2022,
18679/2022, 18680/2022, 18681/2022& 19643/2022
HIM BIO AGRO ..... Appellant
Through: Mr. Parag Tripathi, Sr. Advocate with
Mr. S. K. Bansal and Mr. Ajay
Amitabh Suman, Advocates.
versus
SULPHUR MILLS LIMITED & ANR. .... Respondents
Through: Mr. Sandeep Sethi, Sr. Advocate with
Ms. Mamta Rani Jha and Mr.
Siddhant Sharma, Advocates for R-1.
Mr. Aditya Bhattacharya, Advocate
for R-2.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
ORDER
% 22.04.2022 The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. The appellant seeks to impugn the order passed by the learned Single Judge on 02.08.2021 in suit bearing No.CS(COMM)1225/2018on the ground that the interim order is likely to prejudice the appellant's contention that the patent granted to the respondent is vulnerable.
2. Mr. Parag P. Tripathi, the learned Senior Advocate for the appellant refers to the dicta of the Supreme Court in V. N. Krishna Murthy And Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:27.04.2022 02:32:03 Another Versus Ravikumar And Others (2020) 9 SCC 501 which, in turn, relies upon another judgement, as under:
"20. In K. Ponnalagu Ammani V. State of Madras this Court laid down that test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in the following words: (SCC Online Mad) Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinary leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
3. Mr. Tripathi, submits that in the light of the above dicta, this appeal is maintainable.He further submits that since the respondents have relied upon the impugnedorder in the appellant's pending suit, as if it is a fait accompli and the appellant's/plaintiff have no arguable case or subsisting cause of action in the suit, the appellant is seriously prejudiced, hencethe appeal is maintainable.
4. On the other hand, Mr. Sandeep Sethi, the learned Senior Advocate for respondentno. 1 submits that an appeal would lie only by a person who would be bound by a decree or judgment; the order impugned by the appellant is not yet final; the appellant too would have a right to argue its case in the pending suit.
Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:27.04.2022 02:32:035. Mr. Tripathi, the learned Senior Advocate for the appellant submits that the appellant's case should be heard afresh, uninfluenced by the observations in para nos. 51, 52, 74, 79 & 80 of the impugned order.
6. Insofaras the respondents also are of the view that the said order is not an order in rem, the appellant shall be so allowed, indeed it retains the right to so contend.
7. The appeal along with the pending applications stands disposed-off in the above terms.
NAJMI WAZIRI, J SWARANA KANTA SHARMA, J APRIL 22, 2022 sk Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:27.04.2022 02:32:03