Gujarat High Court
Rajnikant vs Pharma on 8 March, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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OJCA/87/2010 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 87 of 2010
In
CIVIL
SUITS No. 1 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
RAJNIKANT
DEVIDAS SHROFF & 1 - Applicants
Versus
PHARMA
CHEM & 5 - Respondents
======================================
Appearance :
MR BIJAL
CHHATRAPATI FOR SINGHI & CO for the
Applicants.
MR
MANAV A MEHTA for the Respondents.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/03/2010
CAV
JUDGMENT
1. The present Civil Application has been preferred by the applicants original plaintiffs seeking amendment of the claim in the Suit and permit the applicants to enhance its claim from Rs.1,00,00,000/- (Rupees one Crore only) to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only).
2. It is the case on behalf of the applicants- original plaintiffs that initially the applicants original plaintiffs had filed Civil Suit No.1 of 2005 before the learned District Court, Valsad seeking perpetual order of injunction restraining the opponents - original defendants from in any manner manufacturing and/or offering for sale the said product viz. Phosphorous Pentachloride, or applying the invention covered by the said Patent No.172459 for manufacture of Phosphorous Pentachloride. As the defendants have also tendered counter claim for revocation of aforesaid Patent No.172459, the suit has been transferred to this Court.
3. It is the case on behalf of the applicants original plaintiffs that the Civil Suit in question has been filed claiming damages then estimated at Rs.1 Crore and in the alternative, the applicants had submitted that they are entitled to an order directing the defendants to render a true and faithful account of all the profits earned by the defendants by selling the said product and that the defendants be further ordered and decreed to pay to the applicants such amount as may be found due on such account being taken.
4. It is submitted by learned advocate appearing on behalf of the applicants original plaintiffs that the loss suffered by the plaintiffs is much more than what was initially perceived and the amount of profit derived by the opponents- defendants from infringing the applicants' Patent No.172459, is far more too. Therefore, the applicants original plaintiffs have submitted the present application seeking amendment of the claim in the Suit. It is the avernment in the application that the applicants believe that considering the sales made by the defendants, the defendants would have at least made profit exceeding of Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only) by infringing the Patent No.172459 of the applicants and, therefore, it is requested to allow the present application and permit the applicants to enhance its claim to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only).
5. The applicants original plaintiffs have also requested to permit the applicants- original plaintiffs to amend the plaint by replacing Paragraph Nos.12, 16 and 21(b), as per Schedule I. Substance of the request of the applicants is to permit the applicants original plaintiffs to enhance the claim by way of damages to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only).
6. Mr.Bijal Chhatrapati, learned advocate appearing on behalf of the applicants original plaintiffs have vehemently submitted that as such according to the defendants themselves, the sales of the infringing product Phosphorous Pentachloride made by the defendants for the period 2003 to 2010 is about 4257 metric tons and on conservative estimate, the defendants had made profit of Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only) of Phosphorous Pentachloride. It is further submitted that as such the plaintiffs are using Nickel equipments, whereas the defendants are using Lead equipments and, therefore, the cost of production of the plaintiffs is much more than that of the defendants. It is submitted that cost of production of the defendants being low, the profits earned by the defendants are much more than that of the plaintiffs. Therefore, it is requested to allow the present application and permit the applicants original plaintiffs to enhance the claim by way of damages from Rs.1,00,00,000/- (Rupees One Crore only) to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only).
7. Mr.Bijal Chhatrapati, learned advocate appearing on behalf of the applicants- original plaintiffs has relied upon the following decisions of the Hon'ble Supreme Court as well as Orissa High Court and Allahabad High Court in support of his prayer that to permit the applicants to amend the plaint and to enhance the claim by way of damages to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only):-
(i) (2004)6 SCC 415 Pankaja and another V/s. Yellappa (Dead) By Lrs. And others.
(ii) AIR 2001 SC 699 Ragu Thilak D. John V/s S. Rayappan and others
(iii) AIR 2002 SC 3369 Sampath Kumar V/s. Ayyakannu and another
(iv) AIR 1986 ORISSA 133 Dhirendra Kumar Pandey and others V/s. Smt. Rashmani Dei
(v) 2000 AIHC 1040 P. Jayabaskar and others V/s. Sarawathi and others
(vi) AIR 1985 SC 817 Vineet Kumar V/s. Mangal Sain Wadhera
8. The present application is opposed by Mr.Manav Mehta, learned advocate appearing on behalf of the opponents original defendants. It is submitted that by way of amendment, applicants original plaintiffs want to introduce new case or new cause of action. Therefore, it is requested to dismiss the present application. It is submitted that in the original suit- plaint, plaintiffs have never claimed damages by way of loss of profit as now sough to be claimed by way of amendment. It is submitted that in the original plaint and at the time of filing of the suit in the year 2001, the plaintiffs have claimed damages estimated to Rs.1 Crore by reason of the acts of infringement committed by the defendants, the plaintiffs have suffered damages. It is submitted that as stated hereinabove, the plaintiffs have never prayed for damages due to loss of profit to the plaintiffs. Therefore, it is submitted that by such an amendment and under the guise of enhancement of the claim, the plaintiffs want to introduce new case and new cause of action claiming the damages on account of loss of profit, which is not permissible and which is not required to be granted. It is submitted that if such an amendment is permitted to be allowed, in that case, cause of action claiming damages towards loss of profit would be barred by limitation.
9. Mr.Manav Mehta, learned advocate appearing on behalf of the defendants has relied upon the following decisions of the Hon'ble Supreme Court as well as Madhya Pradesh High Court:-
(i) (2008)14 SCC 632 South Konkan Distilleries & Anr. V/s. Prabhakar Gajanan Naik & Ors.
(ii) AIR 1967 SC 96 A.K.Gupta & Sons Ltd. Vs. Damodar Valley Corporation
(iii) AIR 1985 MP 219 Rajlal Sindhi Vs. M/s. Kaka & Company, Satna & Anr.
By making above submissions, it is requested to dismiss the present application.
10. Heard learned advocates appearing on behalf of the respective parties at length.
11. At the outset, it is required to be noted that initially Civil Suit came to be instituted by the applicants original plaintiffs before learned District Court, Valsad in the year 2005 being Civil Suit No.1 of 2005 seeking perpetual order of injunction restraining the opponents original defendants from in any manner manufacturing and/or offering for sale the said product viz. Phosphorous Pentachloride, or applying the invention covered by the said Patent No.172459 for manufacture of Phosphorous Pentachloride.
12. At the time of filing of the suit in the plaint, the plaintiffs have claimed damages quantified at Rs.1 Crore by submitting that by reason of the acts of infringement committed by the defendants, the plaintiffs have suffered damages then estimated at Rs.1,00,00,000/- (Rupees One Crore only) and in the alternative, the applicants have prayed for a decree directing the defendants to render a true and faithful account of all the profits earned by the defendants by selling the said product and that the defendants be further ordered and decreed to pay to the applicants such amount as may be found due on such account being taken.
Thus, from the above, it is clear that the claim made by the plaintiffs for a sum of Rs.1 Crore is by way of damages only and not claiming damages for loss of profit. At the time of filing of the Suit, the claim of the plaintiffs by way of damages of Rs.1 Crore was not with respect to loss of profit at all. By way of proposed amendment, the plaintiffs want to amend the plaint and to enhance the claim from Rs.1,00,00,000/- (Rupees one Crore only) to Rs.10,64,00,000/- (Rupees Ten Crores Sixty Four Lacs only) by way of damages due to loss of profit by submitting that the sales of the infringing product Phosphorous Pentachloride made by the defendants for the period 2003 to 2010 is about 4257 metric tons and the defendants is likely to make profit of Rs.15/- per kg. of Phosphorous Pentachloride. Therefore, under the guise of amendment by enhancing the claim towards Rs.1,00,00,000/- to Rs.10,64,00,000/- the plaintiffs want to claim the damages for loss of profit, which was never the claim of the plaintiffs at all in the plaint. Thus, it appears to the Court that by way of amendment, pleadings and praying for enhancing of the claim of damages for loss of profit, the plaintiffs want to introduce a new case or a new cause of action, which is not permissible. [see decision rendered by the Hon'ble Supreme Court in the case of Mr.A.K.Gupta & Sons Ltd. (Supra)]. If the plaintiffs are permitted to amend the plaint as prayed for and substitute Paragraph Nos.12, 16 and 21(b), in that case, entire nature of the claim towards damages is likely to be changed and it is likely to introduce a new case claiming damages towards loss of profit.
13. It is also required to be noted at this stage that even otherwise, the prayer of the applicants original plaintiffs to permit them to amend the plaint is not only belated but in view of the order passed by the Apex Court, the same cannot be granted now as it is likely to delay the proceedings. It is to be noted that the Civil Suit is of the year 2005 and vide order dated 02/02/2009, the learned Single Judge granted interim injunction below Exh-5 by restraining the defendants from in any manner manufacturing and/or offering for sale the said product viz. Phosphorous Pentachloride, or applying the invention covered by the said Patent No.172459 for manufacture of Phosphorous Pentachloride. By order below Exh-5, it is also directed to file the statement of accounts right from the beginning till the date of disposal of Exh-5 so far as the same is related to the manufacture of Phosphorous Pentachloride and profits derived therefrom by them.
14. It is to be noted that against interim injunction granted by learned Single Judge of this Court, the defendants approached the Hon'ble Supreme Court by way of Civil Appeal No.271 of 2010. Initially an injunction was granted by the learned Single Judge and, thereafter, the Hon'ble Supreme Court disposed of the said Civil Appeal vide order dated 13/01/2010 and Hon'ble Supreme Court passed the following order :
In the facts and circumstances of this case, we direct the Trial Court to conclude the hearing of the suit and decide the same as expeditiously as possible, in any event, within a period of three months from the date of communication of this order. The Trial Court shall decide the suit without being influenced by the orders of any Court, including this Court.
The parties are directed to appear before the Court concerned on 25th January,2010. The parties shall cooperate with the Trial Court and the learned Presiding Judge of the Trial Court is requested to avoid giving unnecessary adjournments in this case.
The interim order of stay granted by this Court shall continue to operate until the disposal of the suit.
The appeal is disposed of with the aforementioned observations and directions.
Thereafter, parties were directed to appear before this Court on 25/1/2010. It appears from the proceedings of the Suit that the writ of the order of the Hon'ble Supreme Court was received by this Court on 29/01/2010 and the Civil Suit was placed before this Court on 11/2/2010 and this Court passed the following order on 11/02/2010:-
Learned Advocates, Shri Bijal Chhatrapati and Shri Manav Mehta, appearing for the plaintiff and defendant respectively jointly pray for time. In light of the direction of the Apex Court learned Advocates are permitted to place on record a schedule proposing how the parties intend to proceed to enable the Court to decide the suit after hearing within a period of three months from 29/01/2010, which is the date of receipt of the order by the Registry of this High Court. Matter to come up on 15/02/2010.
Thereafter, learned Single Judge vide order dated 16/02/2010 fixed schedule with respect to hearing of the suit as jointly proposed by learned advocates appearing on behalf of the respective parties and this Court passed the following order on 16/2/2010 :
Heard learned Counsel appearing for both the sides. The following schedule is jointly proposed with a request to grant some leeway in relation to production of documents, in case of necessity.
Event Date By The parties to produce documents and suggest draft issues within one week.
19th February, 2010.
The Hon'ble Court may frame issues within one week after submission of draft issues by the parties.
and Order the appointment of Commissioner to record evidence, with directions to:
i) accept affidavit in lieu of examination in chief;
ii) to visit such place as the parties may request, so as to enable expeditious disposal;
iii) to conclude the recording of evidence, within two months;
26th February, 2010.
Parties to conclude admission and denial of documents within 3 days of the order of the Hon'ble Court framing issues.
3rd March, 2010.
Recording of evidence to be concluded by the Court appointed Commissioner.
3rd April, 2010.
The proceedings be set up for arguments after conclusion of the record of evidence.
5th April, 2010.
Matter to come up on 19/02/2010.
15. That thereafter, the learned Single Judge framed the issues on 24/02/2010 and even appointed the Commissioner to record the evidence and at that stage, the applicants original plaintiffs have instituted the present Civil Application for amendment, as stated hereinabove, introducing altogether a new case claiming damages towards loss of profit, which is derived by the plaintiffs. In view of the above, the present Civil Application cannot be granted and deserves to be dismissed as the applicants original plaintiffs cannot be permitted to introduce altogether a new case for damages towards loss of profit, which was never prayed by them at the time of filing of the Civil Suit.
16. Now, so far as reliance placed upon the decisions of the Hon'ble Supreme Court by learned advocate appearing on behalf of the applicants original plaintiffs, as referred hereinabove, are all in the facts and circumstances and are not applicable and/or of any assistance to the applicants to the facts of the present case.
17. In the case before the Hon'ble Supreme Court in the case of Ragu Thilak D. John (Supra) upon the reliance placed by learned advocate appearing on behalf of the applicants, a suit was filed for permanent injunction restraining the defendants from demolishing compound wall of the suit property and during the pendency of the suit, the defendants demolished the compound wall and, therefore, plaintiffs prayed for recovery of damages. In the aforesaid facts and circumstances, the Hon'ble Supreme Court permitted plaintiffs to amend the plaint keeping the question with respect to limitation open. In the present case, as stated hereinabove, the question is not only with respect to limitation but the question is by proposed amendment, the applicants- original plaintiffs want to introduce altogether a new case by way of damages on account of loss of profit, which was never pleaded/claimed by the plaintiffs, while claiming damages of Rs.1,00,00,000/- (Rupees One Crore) in the Suit.
18. In view of the above and for the reasons stated hereinabove, the present Civil Application deserves to be dismissed and is accordingly dismissed more particularly the claim of the plaintiffs with respect to loss of profit can be taken care while taking alternative prayer of the plaintiffs i.e. when the plaintiffs have alternatively prayed to direct the defendants to render a true and faithful account of all the profits earned by the defendants by selling the said product and that the defendants be further ordered and decreed to pay to the applicants such amount as may be found due on taking such account. Accordingly, the present Civil Application is dismissed. No costs.
[M.R.SHAH,J] *dipti Top