Himachal Pradesh High Court
) Boehringer Ingelheim vs K. S on 21 April, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 21th DAY OF APRIL, 2022
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
OMP No.129 of 2022 in COMS No.7 of 2022
Between:
1) BOEHRINGER INGELHEIM
PHARMA GmbH & CO. KG, D
55216, INGELHEIM AM RHEIN
GERMANY THROUGH ITS
POWER OF ATTORNEY
HOLDER.
2) BOEHRINGER INGELHEIM
(INDIA) PVT. LTD. UNIT
NO.202 AND PART OF UNIT
NO.201, 2ND FLOOR GODREJ
2, PIROJSHA NAGAR,
EASTERN EXPRESS
HIGHWAY, VIKHROLI (E),
MUMBAI 400079 THROUGH
ITS POWER OF ATTORNEY
HOLDER.
....PLAINTIFFS.
(BY. M/S ASHOK AGGARWAL AND VINAY KUTHIALA, SENIOR
ADVOCATES, WITH M/S ATUL JHINGAN, SHILPA SOOD,
SANJAY KUMAR, ARPITA SAWHNEY AND PRIYANKA
SHARMA, ADVOCATES)
AND
1. MSN LABORATORIES
PRIVATE LIMITED 2223,
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2
.
INDUSTRIAL AREA,
MEHATPUR, UNA,
HIMACHAL PRADESH,
174315 THROUGH ITS
MANAGING DIRECTORS.
ALSO AT
MSN LABORATORIES
PRIVATE LIMITED MSN
HOUSE, PLOT NO.C24,
SANATH NAGAR
INDUSTRIAL ESTATE
SANATH NAGAR,
TELANGANA 500018
ALSO AT MSN CORPORATE,
H.NO.291/10 & 11/MSN
WHITEFIELDS, KONDAPUR,
HYDERABAD 500084
TELANGANA
2. ERIS LIFESCIENCES
LIMITED AF10 KANCHAN
PHARMA HOUSE NATIONAL
HIGHWAY NO.8, ASLALI,
AHMEDABAD382427
GUJARAT
THROUGH ITS MANAGING
DIRECTOR.
....DEFENDANTS.
(BY. MR. BIPIN CHANDER NEGI, SENIOR ADVOCATE, WITH
M/S GURU NATRAJAN, SHRADHA KAROL, ADVOCATES, FOR
DEFENDANT NO.1)
( MR. NEERAJ GUPTA, SENIOR ADVOCATE, WITH M/S
RAJESHWARI, ANUJ GUPTA, SWAPNIL GAUR AND
ABHINEETA CHATURVEDI, ADVOCATES, FOR DEFENDANT
NO.2)
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.
Whether approved for reporting?1 Yes
Reserved on: 29.03.2022.
This application coming on for pronouncement of order this day, the Court
passed the following:
ORDER
This order will dispose of an application filed by the applicant/defendant No. 2 under Order VII, Rules 10 and 11 read with Section 151 of the Code of Civil Procedure praying for rejection/return of the plaint on the grounds taken thereunder.
2. At the very outset, it may be clarified that the ground of the suit being bereft of any cause of action against the defendant No. 2 stands pleaded in the application, but the same was not pressed and the application was primarily argued on the ground that in terms of the provisions of the Commercial Courts Act, 2015, the Courts have jurisdiction to entertain a "commercial dispute of a specified value" and not a "commercial dispute not of specified value" and as the plaintiffs have failed to disclose that commercial dispute raised by the plaintiffs was of what specified value, therefore, the suit was not maintainable as a commercial suit and 1 ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 4 .
the same was liable to be returned to the plaintiffs for its presentation before the appropriate Court as an ordinary Civil Suit.
3. Mr. Neeraj Gupta, learned Senior Counsel appearing for defendant No. 2 has referred to the provisions of Sections 7 and 12 of the Commercial Courts Act, 2015 (hereinafter referred to as "the 2015 Act"). By placing reliance thereupon, he has submitted that in terms of the provisions of Section 7 of the Act, all suits and applications relating to commercial disputes of a Specified Value filed in the High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court. He further submitted that in terms of the provisions of Section 12(1)(d), the "Specified Value" of the subject matter of the commercial dispute in a suit shall be determined, where the relief sought in a suit, relates to any other intangible right, as the market value of the said rights, as estimated by the plaintiff. Learned Senior Counsel has thereafter taken the Court through the averments as they stand contained in the plaint and submitted that a perusal of the plaint demonstrates that it lacks material particulars, as are necessary in terms of the 2015 Act for a suit to be maintained as a commercial suit. By referring to para21 of the plaint, he argued that all that is mentioned in this para is that subject matter of the ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 5 .
present suit was a commercial suit, as defined in Section 2(1)(c)(xvii) and is of "Specified Value", as defined in Section 2(1)(i) read with Section 12 of the 2015 Act, without disclosing as to what the "Specified Value" of the subject matter was. Thereafter, by referring to the averments as are contained in paras45 and 46 of the plaint, learned Senior Counsel has urged that there is no specific mention in these paras of the "Specified Value" of the subject matter of the commercial dispute and, therefore, the application filed under Order VII, Rules 10 & 11 read with Section 151 of the Code of Civil Procedure has to be allowed and the plaint is liable to rejected to the plaintiffs for its presentation before the appropriate Court of law, as an ordinary Civil Suit. Learned Senior Counsel has relied upon the following two judgments in support of his contentions: "1. Ambalal Sarabhai Enterprises Limited Vs. K. S. Infraspace LLP and another (2020) 15 Supreme Court Cases 585.
2. Laxmi Polyfab Pvt. Ltd. Vs. Eden Realty Ventures Pvt. Ltd. And another, AIR 2021 Calcutta 190."
4. By way of the response that stands filed to the application, the plaintiffs have contested the application on the ground that the contention of the applicant/defendant No. 2 that the present commercial suit does not contains any averments as ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 6 .
to the "Specified Value" of the Intellectual Property Rights, i.e., Suit Patent IN'301 is baseless and misleading, as in paras21, 45 and 46 of the plaint, the plaintiffs have categorically indicated the aggregate suit valuation and thus, complied with the mandate of law. According to the plaintiffs, the lis in issue is a commercial dispute, as it falls within the ambit of Section 2(c)(xvii) of the 2015 Act and plaintiffs have specifically valued the infringement of its patent, i.e., IN '301 at rupees one crore and sought damages on this count. Further, as per the plaintiffs, Sections 6, 7 and 12 of the Commercial Courts Act have to be read together with Sections 104 and 108 of the Patents Act, 1970, harmonious reading of which would demonstrate that the objections raised by defendant No. 2 are without any merit.
5. Mr. Ashok Aggarwal, learned Senior Counsel, appearing for the plaintiffs has argued that a patent dispute is always a commercial dispute and further in terms of Section 108 of the Patents Act, 1970, the reliefs which a party can get in a suit for infringement, include an injunction and at the option of the plaintiff, either damages or an account of profits. Learned Senior Counsel by referring to the contents of the plaint, has submitted that whereas in para21 of the plaint, the plaintiffs have clearly ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 7 .
spelled out that the subject matter of the suit was a commercial dispute, as defined in the Commercial Courts Act, which was of a "Specified Value" in terms of the said Act and thereafter, in paras 45 and 46 of the plaint, the plaintiffs have further stated that the plaintiffs were assessing the value of the suit for the purpose of decree for permanent injunction at rupees 10,000/, whereupon requisite Court Fee stood paid and for the prayer of money decree of damages, the suit was valued at rupees one crore, whereupon, ad valorem Court Fee stood paid.
6. Learned Senior Counsel has also argued that the averments that are contained in paras 45 and 46 of the plaint do take care of the provisions of Section 12(1)(d) of the 2015 Act, as the market value of the rights infringed by the defendants is to be as per the estimate of the plaintiffs and same has to be taken into account for determining specified value which has to be in terms of the estimation of the plaintiffs and the same can not be at the whims of the defendant. Learned Senior Counsel has also argued that herein as the right of the plaintiffs of exclusive use of its patent stood infringed, for which damages were being sought by the plaintiffs alongwith other reliefs, therefore, it was the estimation of the plaintiffs of the market value of the said rights, ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 8 .
which stood infringed, which were to be taken into account for determining the "Specified Value". Learned Senior Counsel has also relied upon the following judgment in support of his contention: "Condor Healthcare Privae Limited and another 2018 SCC Online Hyd 348.
7. I have heard learned counsel for the parties and have also gone through the averments contained in the application as well as the reply and also the plaint.
8. The application in issue stands filed under Order VII, Rule 10 of the Code of Civil Procedure read with Rule 11 thereof.
In terms of Order VII, Rule 10 of the Code, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted, subject to the provisions of Rule10A thereof. In terms of the provisions of Order VII, Rule11 of the Code, the plaint shall be rejected if the same, inter alia, does not disclose a cause of action; or where the suit appears from the statement in the plaint to be barred by any law.
9. In the present case, the plea of nondisclosure of cause of action has not been pressed by the applicant/defendant No. 2. During the course of arguments of the application in hand, ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 9 .
learned Senior Counsel for the applicant/defendant No. 2 could not point out that the suit in issue appeared to be barred by any law from the statement in the plaint.
10. As far as the contention so raised on behalf of applicant/defendant No. 2 that the suit which stood filed, as a commercial suit was not maintainable as such is concerned, this Court is of the considered view that the arguments which have been raised in this regard by the applicant/defendant No. 2 cannot be accepted. Section 2(1)(c)(xvii) defines "commercial dispute" to mean a dispute arising out of intellectual property rights relating to registered and unregistered trademarks, copyright, patent etc. Section 2(1)(i) defines "Specified Value" in relation to a commercial dispute to mean the value of the subject matter of the suit, as determined in accordance with Section 12 , which shall not be less than three lakh rupees or such higher value, as may be notified by the Central Government. In terms of Section 12(1)(d), the "Specified Value" of the subject matter of the commercial dispute in a suit, where the relief sought relates to any other intangible right, is the market value of the said rights, as estimated by the plaintiff.
11. Herein, the suit filed by the plaintiffs is for permanent ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 10 .
prohibitory injunction, restraining the defendants from infringing the patent owned by plaintiff No. 1 and other consequential reliefs.
The reliefs prayed for by the plaintiffs are to restrain the defendants by a permanent order and injunction from infringing the patent rights of the plaintiffs under Indian Patent No. 243301 and for ordering the defendants to jointly and severally pay to the plaintiffs a sum of rupees one crore as and by way of damages.
There are other reliefs also sought by the plaintiff, however, the principal reliefs are of permanent injunction and damages. In para46 of the plaint, the valuation of the suit for the purpose of Court Fee and jurisdiction has been done and the same reads as under: "(i) Prayer (a) for permanent injunction is valued at Rupees 10,000/wheeon court fee of Rupees 1260 has been paid.
(ii) Prayer (b) for a money decree of damages, the suit is valued at Rs.1 Crore whereon ad valorem court fees of Rs.1,02,760/ has been paid.
(iii) Prayer (c) for seizure/forfeiture delivery up the suit is valued at Rs.10,000/ whereon Court fees of Rs.1260/ has been paid.
(iv) Prayer (a) and (c) is valued at Rs.10,000 each and court fee of Rs.2520/ is paid.
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Thus total court fee of Rs.105080/ has been paid on the plaint on the aggregate suit valuation of Rs.1 Crore+10,000/+10,000/."
12. This Court is of the view that the contents of para46 of the plaint specify the "Specified Value" of the intangible right, as estimated by the plaintiffs and, therefore, it cannot be said that the plaint does not discloses the "Specified Value" of the commercial dispute.
13. Now coming to the judgments relied upon by the parties: In Ambalal Sarabhai Enterprises Ltd. Versus K.S. Infraspace LLP (2020) 15 Supreme Court Cases 585, Hon'ble Supreme Court after referring to the relevant provisions of Section 2 and Sections 6 & 7 of 2015 Act, held that a matter will fall under the jurisdiction of the Commercial Court or the Commercial Division of the High Court on the following factors:
(i) it shall be a commercial dispute within the meaning of Section 2(1)(c) of the Act; and
(ii) such commercial disputes are of a specified value as per Section 2 (i) of the Act.
14. Hon'ble Supreme Court also held that in terms of Section 11 of the Act, notwithstanding anything contained in the ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 12 .
Act, a Commercial Court or a Commercial Division shall not entertain or decide any suit relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force.
15. In Laxmi Polyfab Pvt. Ltd. Versus Eden Realty Ventures Pvt.Ltd. And Another, AIR 2021 Calcutta 190, Honble High Court of Calcutta held with regard to Civil Suit No.116 being adjudicated by it that the plaintiffs have sought to recover money lent and advanced, from the defendant and the plaintiffs had not established themselves to fall in any category under Section 2 (1) (c) of the Act of 2015 and therefore, the dispute involved in the suit cannot be said to be a "commercial dispute" within the meaning of the Act of 2015.
16. In Condor Healthcare Private Limited and another Versus M/s Corem Pharma Private Limited, 2018 SCC OnLine Hyderabad 348, Hon'ble High Courts of Andhra Pradesh and Tenalgana at Hyderabad held that the value of reliefs estimated by the plaintiffs deciding the jurisdiction of the Commercial Court and not the value mentioned in the MOU. Hon'ble Court in the said judgment referred to another judgment of the said Court delivered in Y. Venkata Sesha Reddy Vs. Chembati Kaushal Yamma (2007 (6) ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 13 .
ALD 561), in which it was held that the subject matter is not the same thing as the property, but is the substance for adjudication and it has reference to the right which the plaintiff seeks to enforce and the valuation of the suit depends upon the value of the subject matter thereof and the same is valued according to the court fee Act.
In this very judgment, Hon'ble Court also referred to a full Bench judgment of the said Court in Kalla Yadagiri Versus Kotha Bal Reddy (1999 (1) ALD 222), in which the full Bench had held that it is not the value of the things affected that settles the value of the thing affected that settles the value of the relief sought, but it is the value of the relief sought, which determines the jurisdiction. "Subject matter" is not the same thing as property. Subject matter is the substance for adjudication and it has reference to the right which the plaintiff seeks to enforce and the valuation of the suit depends upon the value of the subject matter thereof and the same is valued according to the Court Fee Act.
17. Thus, from what has been discussed hereinabove, it is apparent and evident that as per the Hon'ble Supreme Court, a commercial dispute is a dispute which falls within the meaning of Section 2 (1) (c) of the 2015 Act and such commercial disputes are to be of a specified value as per Section 2 (1) (i) of the same. Further, ::: Downloaded on - 21/04/2022 20:11:03 :::CIS 14 .
as is evident from the orders which have been referred to hereinabove passed by Hon'ble High Courts, the specified value of the reliefs estimated by the plaintiff decides the jurisdiction of the Commercial Court and the subject matter is not the same thing as the property, but it is the substance for adjudication and it has reference to the right which the plaintiff seeks to enforce and the value of the suit depends upon the value of the subject matter as assessed by the plaintiff.
18. Coming to the present case, it is apparent from the contents of the plaint that the dispute raised by the plaintiff is a commercial dispute and the specified value in relation to the commercial disputes stands spelled out by the plaintiff in Paras 45 and 46 of the plaint.
19. Accordingly, in view of what has been held hereinabove, this application being devoid of any merit is dismissed.
April 21, 2022 (Ajay Mohan Goel)
(Rishi) Judge
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