Delhi High Court
Tenxc Wireless Inc. & Anr. vs Andrewcomm. Scope Inc. on 30 November, 2010
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No.15387/2010 in CS(OS) NO.1993/2010
Date of Decision : 30.11.2010
TENXC WIRELESS INC. & ANR. ......Plaintiffs
Through: Mr. Sandeep Sethi, Sr.Adv.
with Mr.J.Saikrishna,
Advocate.
Versus
ANDREWCOMM. SCOPE INC. ...... Defendant
Through : Mr.Shailesh K.Kapoor, Adv.
for defendant no.3.
Mr. Dushyant Dave, Sr.Adv. with
Ms.Gayatri Roy and Mr.Kshitij Sharma,
Advs. for the defendant no.1.
Mr.G.Umapathy, Adv. for defendant
no.2.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
IA No.15387/2010
1. This order shall dispose of an application bearing IA No.
15387/2010 filed by defendant no.1 under Order 39 Rule 4
CPC for vacation of stay dated 4.10.2010 passed in
application bearing IA No.13017/2010, whereby the newly
impleaded defendant nos. 2 and 3 were directed to maintain
status quo with regard to the installation of "alleged Bi-Sector
CS(OS) No. 1993/2010 Page 1 of 17
array antennae" as the same is purported to be supplied by
defendant no.1.
2. Briefly stated the background in which the present
application has been filed is that the plaintiff filed the
abovementioned suit for permanent injunction restraining the
infringement of its Patent no.IN240893 for invention titled
"Asymmetrical Beams for Spectrum Efficiency", delivery up,
rendition of account of profits and damages against a
company known as Andrew Comm. Scope having its office in
1100, Comm. Scope Place SE, Hickory, North Carolina, USA.
The sum and substance of the allegation contained in the suit
was that the plaintiff has patented an invention called
"Asymmetrical Beams for Spectrum Efficiency" which is used
by a mobile service providers for not only increasing the
frequency of spectrum, for wireless communication but also
to make use of the said spectrum optimal. It was alleged in
the plaint that this invention has been patented on 9.6.2010
and in the month of August, 2010 they learnt that this patent
was being infringed by the defendant by providing the
services of the infringed patent that is "Asymmetrical Beams
for Spectrum Efficiency" technology to some prospective
customers in India.
3. The suit came up for hearing for the first time on 27.9.2010
when arguments were addressed by Mr.Kaul, learned senior
counsel for the plaintiff, who pressed for grant of ex parte ad
CS(OS) No. 1993/2010 Page 2 of 17
interim stay in favour of the plaintiff. Since the Court was
not inclined to grant the stay, the matter was adjourned at
request to 28.9.2010. On 28.9.2010, the learned senior
counsel Mr.N.K.Kaul, again made a brief submission and
thereafter sought an adjournment and the matter was
adjourned to 4.10.2010. There were two main considerations
as to why it was not considered fit to issue an ex parte stay.
Firstly, the defendant in the case was having an address in
China (actually there were two cases and the case where
defendant was having Chinese address only was argued) and
it was urged in the second case that is the present case facts
are similar. Secondly, there was complete lack of evidence as
to how the technology was being transferred or rather pilfered
by the defendant into India.
4. By 4.10.2010, the plaintiff filed an affidavit of one Sh.Rajeev
Pancholy, who had stated in his affidavit that the defendant
no.1 is providing the patented „Bi-Sector array antennae‟,
which is infringing the patented invention of the plaintiff to
Tata Tele Services under the Model No.HBXX- 3817TB- VTM
which has been imported by the defendants and deployed for
evaluation with Tata Tele Services. It was also alleged that
the said prospective buyer Tata Tele Communication intended
to purchase 3000 antennas valued at around US$ 3 million at
the current price. On the basis of this affidavit, which was
considered in the nature of a prima facie evidence, this Court
CS(OS) No. 1993/2010 Page 3 of 17
impleaded Tata Tele Services with their office at Jeevan Bharti
Tower 1, 10th Floor, 124, Connaught Circus, New Delhi as the
respondent and directed that the plaintiff shall make
necessary changes in the plaint impleading them as a party
and in the meantime, „status quo‟ shall be maintained by Tata
Tele Services regarding installation of alleged Bi-Sector array
antennae purported to be supplied by defendant no.1.
Provisions of Order 39 Rule 3 CPC were directed to be
complied with within three days and the matter was
adjourned to 1.11.2010.
5. The defendant no.1 learnt about the said ex parte ad interim
order and choose to file an FAO(OS) no. 660/2010 against the
order dated 4.10.2010 which was disposed of by the Division
Bench vide order dated 15.11.2010 remanding the matter
back to the Single Judge directing that provisions of Order 39
CPC and as clarified in Venkatasubbiah Naidu Vs.
S.Chellappan & Ors.'s case (2007) SCC 7 695 be strictly
complied with. After remand of the matter, an application
under Order 39 Rule 4 CPC was filed by the defendant no. 1
on 16.11.2010. The said application was taken up for
hearing on 25.11.2010.
6. The learned senior counsel for the parties were heard.
Although an application bearing IA 15387/2010 has been
filed but neither formal notice has been issued on this
application nor any reply has been filed by the plaintiff to this
CS(OS) No. 1993/2010 Page 4 of 17
application. Similarly, the defendant no.1 who was originally
impleaded as the sole defendant and has been purportedly
aggrieved by the order dated 4.10.2010 has till date chosen
not to file the written statement or the reply to IA
13017/2010 in which an ex parte ad interim stay has been
prayed for by the plaintiff.
7. The point which has been urged by Mr.Dave, learned senior
counsel for defendant no.1 is that the ex parte ad interim stay
dated 4.10.2010 may be suspended on account of the fact
that although the said restraint order has not been passed
against the defendant no.1 but in effect it is causing
irreparable loss and damage to the interest of the plaintiff.
Further, it was contended that the continuation of the
aforesaid ex parte ad interim order can be suspended on
account of the fact that the plaintiff has made false and
misleading statements and suppressed material facts from
the Court. A party who has suppressed material facts,
fabricated documents and mislead the Court ought not be
granted discretionary relief much less a relief by way of an ex
parte ad interim order.
8. In this regard, it was contended by the learned senior counsel
that two of the points which he would like to refer although
there are many more given, in the application are, one that
the plaintiff in its plaint has made the following averments:-
CS(OS) No. 1993/2010 Page 5 of 17
"(a) In paragraph 20 of the plaint, the plaintiffs have inter alia
stated:
"It is stated that in the year 2010, the plaintiff no. 1
entered into a licence agreement with the defendant
with respect to use of the defendant's technology
called the Remote Electrical Tilt (RET). This proves
that the plaintiff no. 1 is an entity which respects
the Intellectual Property Rights of the third parties.
It is precisely for this reason that the plaintiff no. 1
was shocked to learn in August, 2010, that the
defendant herein is engaged in the sale,
advertisement and marketing of Bisector Array
Antennae, which are identical to the plaintiff no. 1's
split-sector antennae/bisector array antennae"
(b) Similarly, in paragraph 31 of the plaint, the
plaintiff states that :
"the cause of action in the present suit arose in
August, 2010, when the plaintiff no.1 came to know
of the infringing acts of the defendant. The cause
of action continues to arise every day since the
defendant continues to import, sell / offer for sale
its infringing, products for use in New Delhi, which
incorporate the invention of the plaintiff no.1
protected by the Indian patent IN 240893."
9. It has been contended that the plaintiff has filed the suit on
22.9.2010 while as the Patent Certificate by the Patents office
has been given to the plaintiff on 09.6.2010 and the plaintiff
has deliberately not produced the specifications in respect of
which the product of the plaintiff has been patented. He has
drawn the attention of the Court to the Patent Certificate
dated 09.6.2010 and contended that the documents annexed
to the patent are the records which have been downloaded
from the website of the patent office while as the plaintiff
ought to have filed the documents which were issued to them
by the patent office while granting the patent. Elaborating
CS(OS) No. 1993/2010 Page 6 of 17
this argument further, it was contended by the learned senior
counsel that there has been material variation with regard to
the averments made in the application for grant of patent and
the one which was actually approved by the patent office.
This material variation was shown in comparison as para
19 as under:-
Claim 19 A sectorized cellular A sub-sector
communications network Antenna
having a plurality of according to
subscribers, comprising: claim 10,
One or more base stations wherein he
each supporting at least one sector antenna
sector; and a sector antenna being replaced
associated with each of the at has a half
least one sector providing a power beam
critical coverage area width of
extending therefrom and approximately
overlapping neighbouring 105 degree.
sectors in a sector handover
zone, at least one said critical
coverage area comprising an
asymmetrical coverage area
10. The second submission which was made was regarding the
cause of action clause on which the learned counsel for the
defendant no. 1 has stated that the plaintiff has contended
that they learnt about the factum of infringement of their
patented product only in the month of August, 2010 while as
the learned senior counsel drew the attention of the Court to
the various documents downloaded by the plaintiff on
21.7.2010 and annexed along with the documents. It is
contended on the basis of these documents that though the
documents have been downloaded on 21.7.2010 but the
CS(OS) No. 1993/2010 Page 7 of 17
plaintiff states that the cause of action has accrued on
August, 2010 when he learnt about the violation, which is
factually wrong.
11. Another contention of the learned senior counsel for the
defendant no. 1 was that the plaintiff had been, of his own
saying, dealing with the defendant and it had entered into an
agreement for using the defendants‟ technology called as
„Remote Electrical Tilt" and thereby the plaintiff company
knew that the defendant company and its subsidiary had
been using the impugned product for more than two years
before filing of the present suit. It is also contended that the
subsidiary company which is dealing with the „bi sector
antenna‟ is known as "ANDREW LLC & ORS." and not as
"ANDREW COMM. SCOPE INC", which has been made the
defendant in the instant case.
12. It was urged that the plaintiff knew that the defendant
company is a US based company and instead of suing the
defendant company in the US, it has chosen to sue the
defendant company in India deliberately in order to scuttle its
business as it is a rival company. The learned senior counsel
has referred to the observations passed by the Apex Court in
Dalip Singh Vs. State of UP and Ors. 2010 2 SCC 114,
wherein it was observed as under :-
"1. For many centuries Indian society cherished
two basic values of life i.e. „satya‟ (truth) and
„ahimsa‟ (non-violence). Mahavir, Gautam Buddha
and Mahatma Gandhi guided the people to ingrain
CS(OS) No. 1993/2010 Page 8 of 17
thee values in their daily life. Truth constituted
an integral part of the justice-delivery system
which was in vogue in the pre-independence era
and the people used to feel proud to tell truth in
the courts irrespective of the consequences.
However, post-independence period has seen
drastic changes in our value system. The
materialism has overshadowed the old ethos and
the quest for personal gain has become so intense
that those involved in litigation do not hesitate to
take shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has
cropped up. Those who belong to this creed do
not have any respect for truth. They shamelessly
resort to falsehood and unethical means for
achieving their goals. In order to meet the
challenge posed by this new creed of litigants, the
courts have, from time to time, evolved new rules
and it is now well established that a litigant, who
attempts to pollute t he stream of justice or who
touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or
final."
13. In the light of the aforesaid facts, it was contended that the
plaintiff has deliberately been guilty of misleading the Court
and therefore, the ex parte ad interim order deserves to be
vacated.
14. The learned counsel has also placed reliance on case titled
S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath
(dead) by LRs & Ors. (1994) 1 SCC 1 in order to urge that the
very basis for obtaining the restraint order by the plaintiff was
based on concealment of facts, falsehood and misleading the
Court and therefore, not only an ex parte ad interim stay
which has been granted in favour of the plaintiff deserves to
be vacated but the suit itself deserves to be thrown out.
CS(OS) No. 1993/2010 Page 9 of 17
15. The learned senior counsel Mr. Sethi, tried to refute the
submission of the learned senior counsel for the defendant
no. 1. It was contended by Mr. Sethi, that there was no
concealment of material facts, misrepresentation or
withholding of information with a view to take undue
advantage. It has been contended by him that the defendant
as originally shown in the memo of parties is the main
company which does its business of wireless communication
either in its own name or in the name of its subsidiary
companies as is stated by the learned counsel for the
defendant no. 1.
16. It is stated that the defendant is trying to make an issue out
of nothing by urging as if the plaintiff had deliberately not
made the defendant company Andrew LLC as a party as it
was to gain something extra which is not the fact.
17. So far as the specifications which are not purported to be
annexed along with the certificate of patent by the plaintiff
are concerned, it was contended by Mr. Sethi, learned senior
counsel for the plaintiff that as a matter of practice, the
Indian Patent office apart from the details mentioned in the
certificate and design issued by them does not provide the
specifications and they have to be applied for by the party
concerned, in whose favour the patent is granted. In the
instant case, the plaintiff had already applied for the certified
copy of the details of the patent and that is the reason why
CS(OS) No. 1993/2010 Page 10 of 17
the information was downloaded from the website of the
patent office and annexed along with the present suit.
18. It was contended that the defendant cannot and ought not to
raise any objection on that score by urging that there is a
variation in the application of the plaintiff and the
design/formula which has been patented as it was urged that
the design and the formula which has actually been patented
is much wider in scope than the one which was applied for by
the plaintiff.
19. It was also contended by the learned senior counsel for the
plaintiff that as a matter of fact, the defendant no. 1 has no
locus standi to file the application under Order 39 Rule 4 CPC
as there is no restraint order against the defendant no. 1 and
it is only against the defendant nos. 2 and 3.
20. I have carefully considered the submission made by the
respective senior counsel for the parties and gone through the
record including the affidavit purported to be filed by the
plaintiff named Sh. Krishnamurthy Kalyanaraman on
26.11.2010.
21. At the outset, it must be stated that so far as the affidavit of
Mr.Kalyanaraman is concerned, the same is not being looked
into on account of the fact that this affidavit has been filed
without the permission of the Court or without there being
any application and moreover the affidavit is purported to
have plugged only the loophole which has been pointed out by
CS(OS) No. 1993/2010 Page 11 of 17
the learned senior counsel for the defendant no. 1. Therefore,
the said affidavit is not being looked into while considering
the question as to whether the ex parte ad interim order
dated 4.10.2010 should continue or be modified during the
pendency of the suit.
22. So far as the continuance of the ex parte ad interim order is
concerned, it may be pertinent here to refer to Order 39 Rule
4 CPC and its proviso, which reads as under:-
"4. Order for injunction may be discharged,
varied or set aside
[Provided that if in an application or temporary
injunction or in any affidavit supporting such
application a party has knowingly made a false or
misleading statement in relation to a material
party injunction was granted without giving notice
to the opposite party, the Court shall vacate the
injunction unless, for reasons to be recorded, it
considers that it is not necessary so to do in the
interests of justice:
Provided further that where an order for
injunction has been passed after giving to a party
an opportunity of being heard, the order shall not
be discharged, varied or set aside on the
application of that party except where such
discharge, variation or setting aside has been
necessitated by a change in the circumstances, or
unless the Court is satisfied that the order has
caused undue hardship to that party.]
23. A perusal of the aforesaid Rule would clearly show that a
party come to the Court with clean hands and should not
make any averment on affidavit which is not only false or
misleading statement in relation to material particulars and if
the injunction is being granted on the basis of the same
without giving notice to the opposite side the Court shall
CS(OS) No. 1993/2010 Page 12 of 17
vacate the injunction unless for the reason to be recorded it
considers it is not necessary to do so. Meaning thereby that if
the Court is satisfied that on account of certain false
averments or concealment of facts a party has been able to
obtain restraint order then a duty is cast on the Court to
vacate the said order unless and until the Court for the
reasons recorded in writing finds to the contrary.
24. In the instant case, I am prima facie in agreement with the
submissions made by the learned senior counsel for the
defendant no. 1 that the plaintiff has tried to give filtered and
selective information as a consequence of which although the
interim order is not passed against the defendant no. 1 but in
effect it has hurt the interest of the said defendant and that is
why the present application has been filed. At the outset, it
must be stated that the Court was not inclined to grant an ex
parte ad interim stay in favour of the plaintiff and against the
sole defendant which happens to be the parent company of
the defendant on 27.9.2010 as well as on 28.9.2010 on
account of lack of prima facie evidence to show that the
patented invention of the plaintiff was being infringed. It
was only after the matter was adjourned that the learned
counsel for the plaintiff filed the affidavit of one Mr. Pancholy
wherein it was alleged that the „bi sector antenna‟ was being
sold by the defendant company to the Tata Tele Services. It is
stated that even at that stage, the Court had committed a
CS(OS) No. 1993/2010 Page 13 of 17
mistake as two cases were taken up together and the Court
carried an impression that the defendant no.1 was a Chinese
party and that is why in the order dated 4.10.2010 the Court
has inadvertently observed that defendant no. 1 has an office
in China and it is not possible to serve the said party by
ordinary means which necessitated the issuance of the
interim order.
25. Another mistake which has taken place while issuing an ex
parte ad interim order is that although the affidavit of
Mr.Pancholy does not talk about the „bi sector antenna‟ being
supplied by the defendant to Reliance Telecommunication, yet
Reliance Telecommunication has been ordered to be
impleaded as defendant no. 2. Again this is on account of a
mistake that in the connected matter which was listed on the
same date which was actually argued, the defendant no. 2
was Reliance Telecommunication and defendant no. 3 was
Tata Tele Services against whom the restraint order was
issued. It was the duty of the plaintiff to have pointed out
this error apparent on the face of the record in the order
dated 4.10.2010 which has not been done.
26. So far as the points which have been urged by the learned
senior counsel for the defendant no.1 Mr. Dave are
concerned, they are also not refuted by the other defendants
by filing affidavit at this stage and looking at the record. I feel
that the submissions made by Mr. Dave, learned senior
CS(OS) No. 1993/2010 Page 14 of 17
counsel cannot be brushed aside as inconsequential. I am
inclined to accept the submission made by the learned senior
counsel that on account of acts of omission and commission
on the part of the plaintiff, the plaintiff ought to have pointed
out that there is a mistake occurring in the order, the
operation of the impugned order is stayed.
27. The observation of the Apex Court in S.P. Chengalvaraya
Naidu's case where it has been held that the entire
proceedings at whatever stage are vitiated and the
proceedings would be struck off in case a party takes
advantage of any falsehood, misrepresentation of coercion but
that may not be the case in the present one.
28. So far as the present case is concerned, the only question to
be considered is the balance of equity at this stage whether
the defendant no. 1 in the light of the aforesaid mis-
statements or wrong facts having been given by the plaintiff,
the interim order dated 4.10.2010 deserves to be suspended
or modified so as to permit the parties to complete the
pleadings of the main suit as well as the application and then
decide the question of grant of stay afresh. The answer to the
aforesaid query in my considered opinion must be in
affirmative.
29. In the light of the aforesaid facts, I am inclined to issue notice
of the application to the plaintiff who may file reply to the
application within two weeks from today. So far as the
CS(OS) No. 1993/2010 Page 15 of 17
operation of the order dated 4.10.2010 with regard to the
impugned order is concerned, the same shall be kept in
abeyance till the time the pleadings are completed. But in
order to balance the equities as suggested by Mr. Dave, the
learned senior counsel has stated that the defendant no. 1
can maintain accounts of the entire transaction which it has
entered into with either the defendant no. 3 or any other
party for supply of Bi-Sector array antennae patented would
be kept in a proper form so that in case the patent of the
plaintiff succeeds at least the defendant can be put to terms
by directing it to pay the damages.
30. For the reasons mentioned above, I accordingly vacate the
order dated 4.10.2010 with the direction that the plaintiff
shall file reply to the application within 30 days from today
with an advance copy to the defendant who may file response
thereto within two weeks thereafter and so far as the
defendant no. 1 is concerned, it shall file reply to the
remaining applications and the written statement within four
weeks from today so as to enable the Court to decide the
other applications also. Expression of any opinion
hereinbefore may not be treated as an expression on the
merits of the case or the interim application to be decided by
the Court.
CS(OS) No. 1993/2010 Page 16 of 17
31. Post the matter before the Joint Registrar on 20.1.2011 for
completion of pleadings.
V.K. SHALI, J.
NOVEMBER 30, 2010 RN CS(OS) No. 1993/2010 Page 17 of 17