Delhi High Court - Orders
Sulphur Mills Limited vs Dayal Fertilizers Pvt. Limited And Ors on 5 September, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~5, 6, 8, 9 & 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 525/2021 & I.A. 15315/2021
SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari
Subramaniam, Mr. Sanuj Das, Ms.
Mamta Jha, Mr. Siddhant Sharma and
Ms. Surbhi Nautiyal, Advocates.
(M:9899844920)
versus
DAYAL FERTILIZERS PVT. LIMITED AND ORS...... Defendants
Through: Ms. Rajeshwari H., Ms. Swapnil Gaur
and Mr. Deepanshu Nagar, Advocates
for D-1 & 3.
Mr. Rajiv Nayar, Sr. Advocate with
Mr. S.K. Bansal and Mr. Ajay
Amitabh Suman, Advocate for D-2.
(M:9990389539)
6 WITH
+ CS (COMM) 564/2021 & I.A. 14641/2021
SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari
Subramaniam, Mr. Sanuj Das, Ms.
Mamta Jha, Mr. Siddhant Sharma and
Ms. Surbhi Nautiyal, Advocates.
versus
SULPHUR CROP CARE PVT. LTD. & ORS. ..... Defendants
Through: Mr. J. Sai Deepak, Mr. Avinash K.
Sharma, Mr. Shashikant Yadav and
Ms. Harshita Agarwal, Advocates for
D-1. (M:9790020447)
8 WITH
+ CS(COMM) 621/2021 & I.A. 15971/2021
SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari
Subramaniam, Mr. Sanuj Das, Ms.
Mamta Jha, Mr. Siddhant Sharma and
CS(COMM) 525/2021 & connected matters Page 1 of 6
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.09.2022
17:22:31
Ms. Surbhi Nautiyal, Advocates.
versus
MOTI INSECTICIDES PVT. LTD. ..... Defendant
Through: Ms. Rajeshwari H., Ms. Swapnil Gaur
and Mr. Deepanshu Nagar,
Advocates.
9 WITH
+ CS(COMM) 627/2021 & I.A. 16098/2021, 10877/2022
SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari
Subramaniam, Mr. Sanuj Das, Ms.
Mamta Jha, Mr. Siddhant Sharma and
Ms. Surbhi Nautiyal, Advocates.
versus
CROP CHEMICALS INDIA LTD. ..... Defendant
Through: Ms. Rajeshwari H., Ms. Swapnil Gaur
and Mr. Deepanshu Nagar,
Advocates. (M:9897905254)
14 AND
+ CS (COMM) 1225/2018 & CC(COMM) 9/2019
SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari
Subramaniam, Mr. Sanuj Das, Ms.
Mamta Jha, Mr. Siddhant Sharma and
Ms. Surbhi Nautiyal, Advocates.
versus
DHARMAJ CROP GUARD LIMITED & ANR. ..... Defendants
Through: Ms. Vindhya S. Mani, Mr. Aditya
Bhattacharya, Ms. Justina Mathew,
Mr. Gursimran Singh Narula and Ms.
Vaishali Joshi, Advocates for D-1.
(M:9717065125)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 05.09.2022
1. This hearing has been done through hybrid mode.
CS(COMM) 525/2021 & connected matters Page 2 of 6 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:12.09.2022 17:22:312. The worthy Registrar General has put up a report dated 25th August, 2022, in respect of the amounts of Rs.50,00,000/- originally deposited before the Madra High Court and subsequently, encashed by the Defendants. It has also been confirmed that three bank guarantees have been furnished by the Defendants for a sum of Rs. 50,00,000/- each. The details of the bank guarantees are set out below:
S. No. Bank Guarantee No. Issued by Filed by Dated Valid upto
1. 6285NDDG00007222 ICICI Defendant 13.08.2021 12.08.2023 amounting to Rs.50 Bank No. 1 (M/s lakhs (original Dayal available on pages Fertilizers 265 to 268) Pvt. Ltd.)
2. 316020824920-LS Standard Defendant 18.08.2021 17.08.2022 amounting to Rs.50 Chartered No. 2 (M/s lakhs (E-filed) Bank Him Bio Agro.)
3. 04561I LG003521 Punjab Defendant 27.08.2021 26.08.2022 amounting to Rs.50 National No. 3 (M/s lakhs (original Bank Mitul available on pages Industries) 269 to 283)
3. Insofar as the Bank Guarantee at Sl. No. 1 is concerned, the bank guarantee is valid till 12th August, 2023. The bank guarantees at serial nos. 2 and 3 as confirmed by the ld. Counsel Mr. Ajay Amitabh and ld. Counsel Ms. Rajeshwari, respectively have expired and shall be renewed within a period of 2 weeks.
CS(COMM) 525/2021 & connected matters Page 3 of 6 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:12.09.2022 17:22:314. List before the Registrar General for the said purpose on 7th October, 2022.
5. At the outset of the hearing, Mr. Rajiv Nayar, ld. Senior Counsel made a submission that an order relating to this very patent in writ petition no. WP/2939/2017 filed by M/s Safex Chemical India Ltd. has been reserved by the Division Bench of the Bombay High Court.
6. The matter was passed over for hearing on the injunction application. During the course of submissions made by ld. Counsel for the Plaintiff and Mr. Suman, ld. Counsel on behalf of Defendant No.2- Him Bio Agro, it was submitted that the writ petition before the Bombay High Court arises out of an amendment which was allowed by the Patent Office prior to the grant of the patent. It is the case of Mr. Suman ld. Counsel that M/s Safex Chemicals India Pvt. Ltd. (hereinafter, 'Safex') which was one of the pre-grant opponents was not given an opportunity to oppose the amendment which was allowed. Hence, a writ petition was filed in 2017 before the Bombay High Court. However, upon a query from this Court as to what is the relevance of the Safex litigation before this Court, it was submitted that Safex and Him Bio Agro are group companies.
7. Mr. Hemant Singh, ld. Counsel appearing for the Plaintiff submits that in the present case, repeated oppositions are being filed at both the pre- grant as well as post-grant stages in respect of the suit patent. He submits that a total of seven pre-grant oppositions were filed and rejected vide orders dated 9th September, 2016 and 11th April, 2017. The writ petition in the Bombay High Court relates to an amendment allowed prior to the grant of the patent. After the grant of the patent, six post-grant oppositions were filed which are pending before the Patent Office. In the said six post-grant CS(COMM) 525/2021 & connected matters Page 4 of 6 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:12.09.2022 17:22:31 oppositions, due to repeated objections, by the counsel for the Opponents who are common counsel even for some of the Defendants, three Opposition Boards have been constituted. The said Boards have given recommendations in favour of the Plaintiff but the Oppositions are pending adjudication before the Patent Office.
8. He further submits that the matter today is listed for hearing of the injunction applications and the order in the writ petition being W.P.(C) 2939/2017 is being cited only with a view to ensure that the hearing in the injunction applications does not proceed.
9. Mr. Nayar ld. Sr. Counsel at this stage submits that the Defendants have no objection in the hearing on the injunction applications continuing.
10. In the judgment rendered by this Court in CS(COMM) 1225/2018 titled Sulphur Mills Limited v. Dharamaj Crop Guard Limited and ors. , the same suit patent was considered and a detailed judgment was passed. The same is currently subject matter of appeal in FAO(OS)(COMM) 114/2022 wherein vide order dated 20th July, 2022, the ld. Division Bench has clarified that the proceedings in these suits can go on. The said order reads: "It is clarified that the pendency of the matter shall be no impediment for the learned Single judge to proceed with the matters." Accordingly, this Court proceeds to hear the application under Order XXXIX Rule 1 and 2 CPC.
11. Submissions heard in part. From the preliminary submissions made by both the parties it appears that in these cases the primary ground raised against grant of interim injunction is non-infringement. In addition, it is submitted by ld. Senior Counsel that there may be certain additional prior arts, apart from those cited in Dharmaj (supra) which the Defendants may CS(COMM) 525/2021 & connected matters Page 5 of 6 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:12.09.2022 17:22:31 wish to cite.
12. In this background, each of the Defendants shall file a non- infringement brief, not exceeding 5 pages. In addition, Mr. Bansal, ld. Counsel shall place on record an additional note on invalidity specifying which are the prior arts mentioned and considered in Dharmaj (supra) and any additional prior art, if any relied upon by the Defendants along with any other objections. These submissions shall be handed over to ld. Counsel for the Plaintiff by 30th September, 2022.
13. All the Defendants shall file their up-to-date statements of accounts of quantity and monetary value of sales of impugned products made by them, since the date of filing of the suits, either before this Court or the Madras High Court, if not already filed, with copies of the same to be provided to the ld. Counsel for the Plaintiff.
14. In CS (COMM) 564/2021, Mr. Sai Deepak, ld. Counsel appearing for Defendant No. 1 submit that as soon as the cease and desist notice was received by the Defendant No. 1, it stopped the manufacture and sale of the impugned product and this is without prejudice to the Defendants' right to contest the matter on merits. Let an affidavit to this effect be filed by the Defendant within two weeks.
15. List for further hearing on 2nd November, 2022.
16. These are part heard matters.
PRATHIBA M. SINGH, J.
SEPTEMBER 5, 2022/dk/sr CS(COMM) 525/2021 & connected matters Page 6 of 6 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:12.09.2022 17:22:31