Delhi High Court - Orders
Basf Se vs Seedlings India Private Limited & Anr on 28 April, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:29.04.2022
16:41:14
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 272/2022 & I.A. 6508-10/2022
BASF SE ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Shrawan
Chopra, Mr. Vibhav Mithal, Mr.
Achyut Tiwari and Ms. Archana
Shankar, Advocates. (M:8604633567)
versus
SEEDLINGS INDIA PRIVATE LIMITED & ANR...... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 28.04.2022
1. This hearing has been done through hybrid mode.
I.A.6510/2022 (for exemption)
2. This is an application filed by the Plaintiff seeking exemption from filing clear copies of the documents.
3. Exemption is allowed, subject to all just exceptions.
4. I.A.6510/2022 is disposed of.
I.A.6509/2022 (additional documents)
5. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015 (hereinafter, 'Commercial Courts Act').
6. The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.
7. I.A. 6509/2022 is disposed of.
CS (COMM) 272/2022
8. Let the plaint be registered as a suit.
CS (COMM) 272/2022 Page 1 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:149. Issue summons to the Defendants through all modes upon filing of Process Fee.
10. The summons to the Defendants shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
11. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
12. List before the Joint Registrar for marking of exhibits on 14th July, 2022. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
13. List before Court on 24th August, 2022.
I.A.6508/2022 (u/O XXXIX Rules 1 & 2 CPC)
14. The present suit has been filed by the Plaintiff - BASF SE, German company against the two Defendants - Seedlings India Private Limited and Best Crop Science Private Limited - seeking permanent injunction restraining the infringement of its patent No. IN 271338 (hereinafter "Suit Patent") titled as "Crystalline Complexes of Agriculturally Active Organic Compounds and a Process for preparing the same". The Plaintiff is stated to be the world's leading chemical company and has its presence in over 90 countries. It has also received various awards for its work in the field of CS (COMM) 272/2022 Page 2 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 chemicals and has incurred over 1900-2000 Million Euros expenditure in research and development. The suit patent is stated to be in relation to a new co-crystalline form containing thiophanate-methyl and pyraclostrobin, which is used for combating a multitude of fungi on various cultivated plants. The Plaintiff had applied for the PCT international application on 8th February, 2008 and the Indian application was filed on 22nd July, 2009. After being published, the suit patent was granted on 17th February, 2016. The term of the suit patent is until 27th February, 2028. The Plaintiff, after obtaining the patent, also obtained registration of the insecticide covered by the patent under Section 9(3) of the Insecticides Act, 1968 (hereinafter "Insecticides Act"), as per registration certificate dated 24th April, 2020 issued by the Government of India/Ministry of Agriculture & Farmers Welfare. The same was granted to the Plaintiff after establishing the efficacy of the insecticide.
15. The case of the Plaintiff is that the Defendants have received registration and approval for manufacturing and marketing a product containing the formulation of crystalline complexes as covered by the suit patent already. Ld. Counsel for the Plaintiff submits that the Defendants, have also applied for registration under Section 9(4) of the Insecticides Act. The same was approved on 16th March, 2022 by the 437th Registration Committee constituted under the Insecticides Act.
16. Mr. Anand, ld. counsel for the Plaintiff submits that this very group company of the Defendant was also impleaded in another suit being CS (COMM) 230/2021 titled BASF SE v. Ravi Crop Science Limited wherein a settlement was entered into among the parties in respect of the same suit patent. Defendant No.2 in that suit - Best Agrolife Limited and Defendant No.3 in that suit-Best Crop Science Private LLP had given an undertaking CS (COMM) 272/2022 Page 3 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 that they would not infringe the Plaintiff's very same patent till the expiry. The said defendants had acknowledged the validity of the Plaintiff's patent. He, submits that Defendant No.2 i.e., Best Crop Science Private Limited (stated to be the erstwhile Best Crop Science LLP) also belongs to the same group, and Defendant No.1 herein-Seedling India Private Limited is its subsidiary, and thus, both are infringing the suit patent, in violation of the undertaking in the previous suit.
17. Heard. A perusal of the Minutes of the 437th Registration Committee Meeting, held on 16th March, 2022, shows that a large number of insecticides and other products have been approved by the said Committee under Section 9(4) of the Insecticides Act. The same reads as under:
18. The Defendants' registration has been granted in the name of M/s. Seedlings India Private Limited and the manufacturer has been shown as Best Crop Science LLP. It is the settled position in law that a registration under Section 9(4) of the Insecticides Act, is a follow-on to the earlier registration under Section 9(3), where the second applicant clearly makes a representation that the insecticide for which the registration is being sought, is the same as the insecticide registered under Section 9(3). Section 9 of the Insecticides Act reads as under:
"9. Registration of Insecticides. -
XXX (3) On receipt of any such application for the registration of an insecticide, the Committee may, after such enquiry as it deems fit and after satisfying itself CS (COMM) 272/2022 Page 4 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 that the insecticide to which the application relates conforms to the claims made by the importer or by the manufacturer, as the case may be, as regards the efficacy of the insecticide and its safety to human beings and animals, register, 7 [on such conditions as may be specified by it] and on payment of such fee as may be prescribed, the insecticide, allot a registration number thereto and issue a certificate of registration in token thereof within a period of twelve months from the date of receipt of the application: Provided that the Committee may, if it is unable within the said period to arrive at a decision on the basis of the materials placed before it, extend the period by a further period not exceeding six months: Provided further that if the Committee is of opinion that the precautions claimed by the applicant as being sufficient to ensure safety to human beings or animals are not such as can be easily observed or that notwithstanding the observance of such precautions the use of the insecticide involves serious risk to human beings or animals, it may refuse to register the insecticide XXX (4) Notwithstanding anything contained in this section, where an insecticide has been registered on the application of any person, any other person desiring to import or manufacture the insecticide or engaged in the business of, import or manufacture thereof shall on application and on payment of prescribed fee be allotted a registration number and granted a certificate of registration in respect thereof on the same conditions on which the insecticide was originally registered."
19. This aspect has been considered by this Court in Sygenta India Ltd. v. Union of India [W.P.(C.)8123/2008, decided on 1st July, 2009] upheld by the Division Bench in Sygenta India Ltd. v. Union of India [LPA 367/2009, decided on 11th August, 2009], as also in Shogun Organics Ltd. v. Gaur CS (COMM) 272/2022 Page 5 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 Hari Guchhait and Ors., [CS (COMM) 201/2017, decided on 14th August, 2019], upheld by the Division Bench in Gaur Hari Guchhait and Ors. v. Shogun Organics Ltd., [RFA(OS)(COMM) 41/2019, decision dated 11th October, 2019], wherein it has been made clear that whenever such an application is made, the applicant under Section 9(4) of the Insecticides Act, makes a categorical representation to the authorities that its product is nothing but a "me too" of the original product, which has been registered. The relevant extracts from Sygenta (supra) reads as under:
"8. Section 5 of the Act vests the power / function to scrutinize, examine and analyze insecticides as to their safety and efficacy on the Committee. Section 5 makes elaborate provisions for the constitution and functions of the Committee, for enabling registration of insecticides on the receipt of applications, after enquiring into the safety and efficacy of the product. Under Section 5(5), the Committee regulates its procedure and conduct of business, including the grant of registrations of parties desirous of importing or manufacturing insecticides, for which purpose it has formulated guidelines. It has also issued a Checklist specifying the various parameters on which data is required to be submitted by an applicant along with its application for registration. Rule 4 of the Insecticides Rules elaborates on the functions of the Committee. Section 9 of the Act provides for three kinds of registrations: (i) Section 9(3-B) - a provisional registration which is granted to an applicant for a period of two years when an insecticide is introduced for the first time in India. It can be granted pending an enquiry and also in the event of agricultural exigencies. This section presupposes insufficiency of examination of data by the Committee; (ii) Section 9(3)
- regulation registration - The regular registration is granted only after submission of complete data by an CS (COMM) 272/2022 Page 6 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 applicant. The Committee conducts a full and in-depth study of the data and has to be ensure itself of the efficacy, toxicity and safety (for humans and other animals) of the insecticide before granting registration; and (iii) Section 9 (4) provides for what is popularly known as a "Me Too" "registration". The registration under Section 9(4) is granted on same conditions and is only granted when there already exists a registration under Section 9 (3) for a particular Insecticide. It is obvious that these "same"
conditions necessarily mean and include the same source of import also."
20. In Shogun Organics (supra), this Court observed as under:
"4. After the grant of patent, the Plaintiff conducted investigations, which revealed that the Defendants were selling d-trans Allethrin in India by themselves and through various distributors, retailers, etc. The active ingredient was also sold to manufacturers of other mosquito repellents such as coils and sprays under the brands Maxo, Mortein, etc. It was further revealed to the Plaintiff that Manaksia Ltd. was granted a registration under Section 9(4) of the Insecticides Act, 1968 for indigenous manufacture of d- trans Allethrin. Owing to the fact that Manaksia's licence was under
Section 9(4), which is a follow-on licence unlike a new/original licence, the Plaintiff suspected that the process of the Defendants would be identical to that of the Plaintiff."
21. Under such circumstances, this Court is convinced that the Defendants having obtained the registration under Section 9(4), the launch of the Defendants' products would be imminent. Moreover, the Defendants' group company, has already given the undertaking in the previous suit, of not using the suit patent. Accordingly, permitting usage of the suit patent by the Defendants would be contrary to the decree dated 1st September, 2021, CS (COMM) 272/2022 Page 7 of 8 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:29.04.2022 16:41:14 passed by this Court taking the settlement on record in CS (COMM) 230/2021. Thus, it is clear that the balance of convenience lies in the favour of the Plaintiff. If the interim relief is not granted at this stage, irreparable injury would be caused to the Plaintiff. The Plaintiff has made a prima facie case for the grant of an interim injunction.
22. Accordingly, till the next date of hearing, the Defendants and anyone acting for and on their behalf are restrained from manufacturing, selling, distributing, offering for sale any insecticide products that infringes the Plaintiff's patent No. IN 271338 including the product approved under Section 9(4) containing Thiophanate Methyl 450 G/L + Pyraclostrobin 50 g/l (w/v) FS.
23. Compliance of Order XXXIX Rule 3 CPC be made within one week.
24. Reply to the present application be filed within four weeks. Rejoinder thereto within four weeks thereafter.
25. List this application before the Court on 24th August, 2022.
PRATHIBA M. SINGH, J.
APRIL 28, 2022/dk/ms CS (COMM) 272/2022 Page 8 of 8