Delhi High Court - Orders
Pfizer Inc & Ors vs Triveni Interchem Private Limited & Ors on 14 December, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~12(Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 442/2021 & I.A. 9527/2022, I.A. 10246/2022
PFIZER INC & ORS. ..... Plaintiffs
Through: Mr. Pravin Anand, Ms. Tusha
Malhotra and Ms. Richa Bhargava, Advs.
versus
TRIVENI INTERCHEM PRIVATE LIMITED & ORS.
..... Defendants
Through: Mr. Shailendra Pratap Singh
and Mr. Anand Darshan, Advs. for D 1,2&4
Ms. Ritika Vohra, Adv. for D-3
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 14.12.2022 I.A. 10246/2022 in CS(COMM) 442/2021
1. By this application, under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC), the plaintiffs allege contumacious and wilful disobedience, by Defendant 1, of order dated 21st October 2021 passed by this Court in the present suit i.e. CS(COMM) 442/2021.
2. The suit alleges that Defendant 1 was selling Palbociclib formulations in respect of which the plaintiffs hold valid and subsisting Indian Patent 218291 (IN 291), without authorisation from the plaintiffs, on its own website as well as on third party websites.
3. Holding that a prima facie case existed in the plaintiffs' favour, this Court by order dated 21st October 2021, granted ad interim relief to the plaintiffs in the following terms:
Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 1 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:27"17. In view of the aforesaid, the following interim directions are passed, to remain in force till the next date of hearing or pending further orders passed by this Court;
(i) Defendant Nos. 1 and 2 are restrained from making, selling, distributing, advertising, exporting or importing or in any manner directly or indirectly dealing with any product, which has, as an ingredient, Palbociclib or any pharmaceutically acceptable salt thereof, as would infringe the plaintiffs' suit patent IN 218291.
(ii) Defendant Nos. 1 and 2 are further directed to remove, from their websites, any indication that they are marketing or offering for sale Palbociclib or any pharmaceutically acceptable salt thereof, forthwith.
(iii) Defendant Nos. 1 and 2 are directed to remove any references to products claimed under the subject matter of the suit patent IN 218291 from their websites and to ensure that the said product is not sold or advertised by them through any third party's websites.
(iv) Defendant No. 3 is directed to delist and permanently remove all advertisements and names relating to Palbociclib API in powder form sold by the Defendant Nos. 1 and 2, or any of its employees, officers, servants, agents, associate and group companies from its platform.
(v) Defendant Nos. 1 and 2 are further directed to disclose, to this Court, the details regarding the earnings made by them by sale of their Palbociclib products, under cover of an appropriate affidavit. The said details should the said defendants so choose, may be furnished in a confidential form."
4. Alleging that Defendant 1 was, in violation of the aforesaid order dated 21st October 2021, continuing to sell Palbociclib on its own as well as on third party websites, the plaintiff moved the present application under Order XXXIX Rule 2A of the CPC for proceeding against Defendant 1 for contempt. It was, inter alia, pointed out that Defendant 1 had altered the packing in which it was marketing and selling Palbociclib online, so as to circumvent the order passed by this Court.
Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 2 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:275. On 7th July 2022, this Court passed a detailed order in the present application, paras 4 to 8 of which read thus:
"4. The Court has perused the online listings, which are extracted in the application. It is clear that the Defendant No. l- Triveni Interchem Private Limited, has uploaded fresh listings of the product 'Palbociclib', on Defendant No. 3 - IndiaMart Intermesh Ltd. 's, online platform. Defendant No. 2 i.e Triveni Chemicals, is a sole proprietorship of Mr. K. K. Singh.
5. Mr. Rao, Id. Counsel appearing for IndiaMart submits that his client would take down the fresh listings within 24 to 48 hours. It is made clear that if the Plaintiffs give notice of any further fresh listings to IndiaMart, the said listings shall also be taken down within 48 hours.
6. Insofar as the Defendant Nos.l & 2 are concerned, the said Defendants shall file a specific reply as to the manner in which these listings came to be put up by them on IndiaMart, especially with the altered packaging, as this Court is prima facie of the view that the changing of the packaging shows deliberate and conscious conduct of the Defendant Nos.l &2.
7. Accordingly, Mr. Kamlesh J. Singh shall file a specific affidavit in response to the said contempt application within two weeks.
8. Mr. Kamlesh J. Singh shall also remain present in Court on the next date of hearing."
6. Purportedly in compliance with the directions contained in the order dated 7th July 2022, Defendants 1 and 2 have filed affidavits, in which all that is said is that the infringing products were inadvertently not removed from the internet listing on the platform of Defendant 3. Clearly, the affidavit is not in compliance with the direction contained in the order dated 7th July 2022 supra.
7. Mr. Kamlesh J. Singh is present in court today consequent to the direction issued by this Court, along with his counsel.
8. Mr. Shailendra Pratap Singh, learned Counsel who appears for Defendants 1 and 2 sought to submit that Defendants had never Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 3 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:27 manufactured or sold Palbociclib and that, therefore, the entire case made out against them by the plaintiff was without substance.
9. This is clearly contrary even to the affidavit filed by Defendants 1 and 2 in which they have acknowledged the fact that they had, indeed, listed the infringing product on their website as well as on the website of Respondent 3 and claimed to have inadvertently omitted to remove the product from the said websites even after the injunction granted by this Court vide order dated 21st October 2021.
10. Mr. Anand also drew my attention to an e-mail dated 20th July 2021, addressed by Defendant 1 to the plaintiff, which reads thus:
"Romila Tarar <[email protected]> Tue, Jul 20, 2021 at 5:40 PM To: [email protected] Dear Ms. Sheetal Mishra, Hope you are doing well.
Thank you for your valuable enquiry. Please find the quotation for Palbociclib as requested by you.
Request you to kindly go through the same and let me know your feedback on the same.
Awaiting a positive response from your end!!! Thanks & Regards, ROMILA TARAR (API & AROMA Dept.)"
11. Attached to the said e-mail was the following quotation:
"To No. 10686 M/s:- Ganpati Pharma Consultants Nehru Palace Branch New Delhi-110019, South Delhi Delhi, India.Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 4 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:27
Kind Attn. Ms. Sheetal Mishra Dear Sir/Madam, This is with reference to your mail regarding our products. We are pleased to quote our rate as under.
Item Name Grade Item Quantit Packing Unit Price Total
details y Amount
Palbociclib In- Powder 100 Packets 95,0000 95,00,00
House Gram INR per 0 INR
gram
GST: 18%
Delivery: 7 Days
Packing: 100 gm Packet
Freight: Extra
Offer Validity: 2 Days
Payment: Advance
Hope you will find our offer most competitive and we are awaiting your order at earliest.
Regards For Triveni Interchem Pvt. Ltd.
ROMILA TARAR 20/07/2021 5:39PM"
12. The aforesaid e-mail was shown to Mr. Shailendra Pratap Singh who, thereafter, consulted his client who is present in court. His client continues to state that he does not sell Palbociclib and that he is only selling its raw materials.
13. Clearly, despite having been personally summoned to the court, Mr. Kamlesh Singh, who is the director of Defendants 1 and 2, is unwilling to come clean and even after having shown the aforesaid documents, continues to state that he does not manufacture or sell Palbociclib and that he is only selling its raw materials.
14. This Court is therefore constrained to hold that Mr. Kamlesh Singh has committed wilful and contumacious disobedience of the Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 5 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:27 order passed by this Court. He is, therefore, found guilty of having committed contempt within the meaning of Order XXXIX Rule 2A of the CPC.
15. List on 5th January 2023 to hear Mr. Shailendra Pratap Singh on the aspect of sentence and steps to be taken.
CS(COMM) 442/2021
16. List before the learned Joint Registrar (Judicial) for completion of pleadings, admission/denial of documents and marking of exhibits on 17th February 2023, whereafter the matter would be listed before the Court for case management hearing and further proceedings.
C. HARI SHANKAR, J.
DECEMBER 14, 2022 dsn Signature Not Verified Digitally Signed CS(COMM) 442/2021 Page 6 of 6 By:SUNIL SINGH NEGI Signing Date:16.12.2022 11:09:27