Calcutta High Court
Philippe Magnier & Anr vs Ctr Manufacturing Industries Ltd.& Ors on 7 September, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1149 of 2011
With
CS No.27 of 2006
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
PHILIPPE MAGNIER & ANR.
Versus
CTR MANUFACTURING INDUSTRIES LTD.& ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 7th September, 2015.
Appearance:
Mr. Pratap Chatterjee, Sr. Adv.
Mr. Sayantan Basu, Adv.
Mr. Majoj Kumar Tiwari, Adv.
. . .for the plaintiffs
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Prithviraj Sinha, Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Victor Dutta, Adv.
. . .for the respondents..
The Court: This is an application for perjury. The application is at the instance of the defendant no.1. The plaintiff No.1 in the instant suit is the patent holder and the plaintiff no.2 is a licensee. There is no dispute that the plaintiff no.1 at all material times was the owner of the Indian Patent which forms the subject matter of the suit in this Court as well as before the Delhi High Court. The plaintiffs at the time of filing this suit have stated that the plaintiff no.2 is an exclusive licensee of an agreement dated 13th December, 1996 and the said relationship continued till 1st of August, 2006. The plaintiffs say that although there appears to be an exclusive licence agreement between the patent holder, namely, the plaintiff no.1 and the plaintiff in the Delhi Suit recording that there was a non-written agreement of licence commencing from 1st January, 2006 2 but no suit could have been filed on the basis of such non-written agreement in India and it was by virtue of the agreement of 1st August, 2006 that the plaintiff no.2 could not have claimed any right as an exclusive licensee of the plaintiff no.1. It was by reason of the exclusive licence agreement entered into between the plaintiff no.1 and Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. dated 1st August, 2006 that the plaintiffs have prayed for withdrawal of the suit which was allowed and Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. filed a suit before Delhi High Court in 2010 seeking similar reliefs against the defendant no.1 in this proceeding.
That the basis for dismissal of the suit on the ground of non-prosecution in this Court was the non-exclusive agreement of 1st August, 2006 is an admitted position. Mr. Ranjan Bachawat, learned Senior Counsel appearing on behalf of the petitioner has referred to an application filed by the petitioners affirmed on 26th September, 2007 in order to demonstrate that notwithstanding such licence agreement reliefs have been claimed by the plaintiffs for injunction restraining the defendants from using the said patent.
I think Mr. Bachawat is not correct in drawing an inference that the said application was filed to prevent the defendant from infringing the patent rights in the said application. The prayers are set out below:
(a) "The respondents and/or its abettors/associates/ agents and assigns be restrained by an appropriate order of injunction from spreading wrongful rumours/communication against the plaintiff no.2 pending disposal of G.A. No.255 of 2006 either in writing or otherwise;
(b) The main petition being GA no.255 of 2006 be heard expeditiously as a "specially fixed matter" subject to convenience of this Hon'ble Court;" 3
The purpose of the said petition is that according to the petitioners the respondents were spreading rumours against the plaintiff no.2 pending disposal of GA No.255 of 2006. Although Mr. Bachawat was correct in contending that by reason of the licence agreement of 1st August, 2006, the plaintiffs could not have proceeded with the suit and the interlocutory application on 26th September, 2007 when GA No.3792 of 2007 was filed, but the circumstances under which the said application was filed could not be said to have been made distorting and/or suppressing any prior agreement or that the statements made in the said agreement would amount to perjury. In the suit filed by the Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. before the Delhi High Court, Sergi acknowledged its relationship with the present plaintiffs. Sergi says that the plaintiff is the exclusive licensee of the plaintiff no.1 in respect of its Indian Patent no.189089 in respect of "Method and Device for Preventing/Protecting Electrical Transformer Against Explosion and Fire" by virtue of a license agreement dated 1st August, 2006. Sergi had taken steps to register the said license deed with the Indian Patent Office, Kolkata on 15th march, 2010. This explains the reason for the plaintiff no.1 and the plaintiff no. 2 to institute the suit at Calcutta for infringement of the said patent by the defendant. Sergi Transformer notwithstanding the agreement dated August 1, 2006 could not have filed the suit in India. Under such background the application filed by the defendant no.1 of perjury has to be taken into consideration.
Chapter 11 of Indian Penal Code deals with false evidence and offences against public justice. A false statement made on oath in pleadings may result in initiation of a proceeding under the said Chapter read with Section 340 of the Criminal Procedure Code. The Court has to form an opinion that the person affirming the said evidence has intentionally made a false statement in the judicial proceeding or he has fabricated a false evidence for the purpose of it being used in any stage of the judicial proceeding. 4 Section 340 requires that the Court is to form an opinion that it would be expedient in the interest of justice that an enquiry should be made into the findings referred to in Clause (b) of Sub-section 1 of Section 195 of the Criminal Procedure Code. Section 195(b) inter alia relates to an offence punishable under Section 193 to 196 (both exclusive). In order to form an opinion at this stage, the applicant must be able to prima facie satisfy this Court that there has been an intentional false evidence made at this stage.
Having regard to the narration of facts indicated above, I am of the view that the basis of the suit and the statements made in the said application have not been made intentionally to give a false evidence or for the purpose of misleading this Court. That Sergi could not have filed the suit prior to 2010 would be evident from Sergi's assertion in the plaint before the Delhi High Court in paragraph 3.
Under such circumstances, this application fails. However, there shall be no order as to costs.
The observations made in this application are only for the purpose of determination of this application and would not affect any pending proceeding.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/b.pal