Delhi District Court
Vide This Order I Shall Decide ... vs Ashok Chaturvedi 1 Of on 24 July, 2014
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS No. 341/13
Narendra Srivastava
Versus
Ashok Chaturvedi
ORDER:
24.07.2014
1. Vide this order I shall decide applications under Order VII Rule 11 CPC moved on behalf of defendants. It is averred in the application that plaintiff has instituted the present suit seeking to restrain the defendants from making groundless threats of institution of legal proceedings for infringement of patent under Section 106 of the Patents Act, 1970 read with Section 34 of the Specific Relief Act, 1963 and Section 151 of the Civil Procedure Code 1908. It is further averred that the present suit does not disclose cause of action on which this court can adjudicate and secondly the present suit is barred by law as the relief being prayed for is barred by law and cannot be granted in any circumstance by this court or any other civil court. The plaintiff has already approached Hon'ble CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 1 of 10 High Court of Allahabad and the present suit has only been filed with the malafide intention of dragging the defendants in unnecessary litigation and with sole purpose of tidying over the criminal offences committed by the plaintiff. As the plaintiff has claimed in para no.2 of his plaint that the defendants are making groundless threats by filing an FIR under Section 420/467/468/471/482/485/486 and 120B IPC and Sections 57 and 63 of the Copyright Act against the plaintiff and police sealed the plaintiff's machines and factory. The plaintiff has again claimed in para no.16 and 17 that groundless threats have been made by filing of FIR and sealing of the plaintiff's premises and machines by the police after registration of the FIR. It is further averred that the plaintiff has claimed in para no.17 of his plaint that he has moved a petition under Section 482 Cr.P.C for quashing of said FIR in Hon'ble Allahabad High Court and same is still pending adjudication. It is further averred that the plaintiff has wrongly stated that FIR to be a groundless threat as FIR is only registered when a prima facie case is made out against the accused. The defendant / applicant only made a complaint to the police about the facts culminating into criminal offenses committed by the plaintiff and the police accordingly registered a case against the plaintiff as a prima facie case is made out against the accused. Therefore, the FIR cannot be held to be a groundless threat under Section 106 of the Patents Act. As Section 106 of the Patent Act applies only in the case where threats are made by circulars, advertisements or by communications with proceedings for infringement of patent. FIR registered for serious criminal offenses CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 2 of 10 of cheating and forgery can never be considered to be la circular, advertisement or communication as stated in Section 106 of the Patents Act and same section applies only when legal proceedings have not been instituted whereas in the present case FIR has already been registered against the plaintiff. Therefore, there is no question of any threat for the purpose of institution of proceedings. It is further averred that complete plaint of the plaintiff does not disclose any threat other than the FIR which has already been dealt with in the forgoing paragraphs. Therefore the complete plaint does not disclose a cause of action on which this court can adjudicate and the prayer made by the plaintiff cannot be granted in the absence of a cause of action.
2. Applications are contested by the respective opposite parties by way of their respective written reply.
3. In reply to the application under Order VII Rule 11 CPC, plaintiff averred that the sole ground taken by the defendants in the present application is that since FIR has been registered against the plaintiff at Kanpur (UP) and the plaintiff moved to Hon'ble Allahabad High Court for stay of arrest in FIR and also filed petition u/s 482 Cr.P.C for desealing of machines of the plaintiff before said Hon'ble High Court and hence, as per defendants, the present petition u/s 106 of Patent Act is not maintainable before this court. It is stated that since the statue has provided civil remedy u/s 106 of Patent Act 1970, there is nothing that can stop the plaintiff from filing the present civil action against the defendants CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 3 of 10 which is best effort the groundless threat. The defendants no.1 & 2 in connivance with the police got registered the FIR through the defendant no.3 although there is no provision under the Patent Act. The scheme of the Patent Act is purely civil in nature and no criminal proceeding can be initiated by the applicant to the patent or even by the registered Patent holder. The Patent Law does not permit any criminal action less the police action and by reason of above, it is contented that the filing of FIR is another way of threat which amounts to groundless threat. There is no bar under the Patent Act that provision of Section 106 cannot be invoked, if any FIR is filed by the defendants. The criminal remedy is foreign to the Patent Act and that merely by filing false FIR against the plaintiff, the right of the plaintiff to seek the remedy under the civil laws of Patent Act cannot be abrogated. If the reasoning is accepted that by filing a complaint or FIR with the police, the provision of Section 106 is abrogated, then every expected patentee can file FIR and close the remedy under Section 106 for the aggrieved person. The reading of Section 106 does not encompass any limitation as to what constitute groundless threat. Even filing of FIR is a written document, which can be taken as a sufficient threat. The present proceedings is initiated further as the defendants are threatening and creating rumors in the industry that if anybody buys the machine manufactured by the plaintiff, they would be facing the infringement action and the plaintiff is showing the FIR as token evidence and bend upon destroying the business of the plaintiff. It is further submitted that it is admitted fact and matter of official record that the patent application filed by the defendant is yet to be CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 4 of 10 considered and the defendant is representing themselves to be the patent holder and abusing the customers of the plaintiff. It is further submitted that the Patent Act and criminal law operates in different field and it is established law that the civil and criminal remedy or disputes are separate and go side by side subject to the provisions of law. It is further vehemently stated that the filing of FIR in the patent matter may be first time in India and never heard off. The validity of such criminal action is different issue, but the claim before this court is of different nature having no conflict with each other.
4. In support of his arguments, Ld. Counsel for the applicants / defendants relied upon certain case law as judgment of Hon'ble Bombay High Court in case titled as The Employees' State Insurance.. Vs R.R. Gundu; AIR 1992 Gau 81 titled as M/s Aristo Printers Pvt. Ltd. Vs. M/s Purbanchal Erade Centre, Guwahati; in another judgment of Hon'ble High Court of Delhi in case titled as Atul Kumar Singh Vs. Ms. Jalveen Rosha reported as 1999(50) DRJ; in another case of Hon'ble High Court of Delhi titled as Ratna Commercial Enterprises Ltd. & Anr. Vs. Vasutech Ltd. reported as 2007(97) DRJ 304.
On the other hand, in support of his arguments Ld. Counsel for plaintiff relied upon the case decided by Hon'ble Bombay High Court (Nagpur Bench) in case titled as Dhiraj Dharamdas Dewani Vs. M/s Sonal Info Systems Pvt. Ltd.; in another case decided by Hon'ble High Court of Calcutta titled as Subir Kumar CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 5 of 10 Kundu @ Sambhu Vs. State of West Bengal; in another case titled as Federation of Industries of India & Anr. Vs. G. Kesavalu Naidu @ Kesavan & Anr.
5. I have heard Ld. Counsel for the parties and perused the material on record as well as case law produced on behalf of the parties.
6. The contention of the applicants/defendants is that plaintiff has instituted the present suit seeking to restrain the defendants from making groundless threats of institution of legal proceedings for infringement of patent under Section 106 of the Patents Act, 1970 read with Section 34 of the Specific Relief Act, 1963 and Section 151 of the Civil Procedure Code 1908, the suit is not maintainable and therefore, the plaint be rejected under Order VII Rule 11 CPC.
7. It is seen that the relief sought by the plaintiff under Section 106 has nothing to do with the proceedings before the Hon'ble Allahabad High Court as the same is directed towards restraining any further threat that may be issued to the customers of the plaintiff on the basis of alleged patent. The validity of the criminal action before Hon'ble Allahabad High Court is different issue which can be decided on the basis of allegation mentioned in the FIR but the relief which is sought before this court is to decide whether the defendants can issue threat of infringement of Patent without it being registered, whether any right accrued to the CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 6 of 10 defendants to issue threats to the plaintiff or its customers on the basis of pending patent application, whether the provisions of Section 106 of Patent Act is attracted or not. Further the prayer made in the plaint are in accordance with the provisions of Section 106 of the Patent Act and if the reasoning is accepted that by filing a complaint or FIR with the police, the provision of Section 106 is abrogated, then every expected patentee can lodge FIR and close the remedy under Section 106 for the aggrieved person. The reading of Section 106 does not encompass any limitation as to what constitute groundless threat.
8. Moreover, the well settled position is that while considering the application under Order VII Rule 11 CPC, court is not required to take into consideration the defence set up by the defendants in their written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law. The scope of Order VII Rule 11 CPC has been elaborately considered in Sopan Sukhdeo Sable Vs. Asstt. Charity Commr., CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 7 of 10 (2004) 3 SCC 137, wherein Hon'ble Supreme Court held that "A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order VII C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. While deciding the matter the Hon'ble Supreme Court further referred following cases in which it is held as under:
"10. In Saleem Bhai v. State of Maharashtra ((2003) 1 SCC 557) it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal((1998) 2 SCC 70) it was held that the basic question to be CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 8 of 10 decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
9. In Whale Stationery Products Ltd. Vs. Kores C.E. GMBH & Anr., Hon'ble Delhi High Court held that dispute is not only between plaintiff and defendant no.1 and involve defendant no.2 as well. Facts involving defendant no.2 cannot be separated from facts concerning defendant no.1. Plaintiff is dominus litus and justifiably invoked the jurisdiction of Delhi Court. It is also held that a part of the plaint cannot be rejected under Order VII Rule 11 CPC. It is further held that for the purposes of application under Order VII Rule 11 CPC court has to proceed on the basis that what is stated in the plaint is true. By that standard it cannot be said that this court lacks jurisdiction to try the present suit.
Moreover, in Swaran Kanta Punj Vs. Surabhi Gehlot, Hon'ble Delhi High Court held that for the purpose of disposal of an application under Order VII Rule 11 CPC relevant averments made in the plaint are to be read and taken as correct. So far as judgments relied upon by Ld. Counsel for the defendants are concern, they are distinguished from the facts and circumstances of the present case.
10. From the averments made in the plaint it cannot be CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 9 of 10 said that plaint discloses no cause of action or that the suit is barred from the above said averments under any law, hence, the plaint cannot be rejected. In the light of the prayer clause of the plaint, the court is also satisfied that the cause of action survives in the present suit. The application made on behalf of the defendant is liable to be dismissed and same is accordingly dismissed.
Announced in the open (LALIT KUMAR) court on 24.07.2014. Additional District Judge 01(SE), Saket Courts, New Delhi.
CS No. 341/13 Narendra Srivastava Vs. Ashok Chaturvedi 10 of 10