Delhi High Court
Helsinn Healthcare Sa vs Aet Laboratories Private Limited & Anr on 26 September, 2025
Author: Amit Bansal
Bench: Amit Bansal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 13th August, 2025
Judgment pronounced on: 26th September, 2025
+ CS(COMM) 1188/2024 with I.A. 49552/2024, I.A. 49553/2024,
I.A. 3729/2025 & I.A. 13451/2025
HELSINN HEALTHCARE SA .....Plaintiff
Through: Mr. Jayant Mehta, Senior Advocate
with Mr. Neel Mason, Mr. Vihan
Dang, Mr. Ujjawal Bhargava,
Mr. Aditya Mathur, Ms. Shivani
Choudhury, Mr. Aditya Mathur,
Ms. Anuparna Chatterjee, Ms. Jasleen
Virk and Mr. Pallav Arora, Advocates
versus
AET LABORATORIES PRIVATE LIMITED & ANR......Defendants
Through: Mr. Dayan Krishnan, Senior
Advocate with Ms. Meenakshi Ogra,
Mr. Tarun Khurana, Mr. Tapan Shah,
Mr. Ritvik Jha, Mr. Samrat S. Kang
and Mr. Parth Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
I.A. 49552/2024 (u/O-XXXIX Rules 1 and 2 of the CPC) and I.A. 3729/2025 (u/O-XXXIX Rule 4 of the CPC)
1. By way of the present judgment, I shall dispose of I.A. 49552/2024 filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter 'CPC') on behalf of the plaintiff and I.A. 3729/2025 filed under Order XXXIX Rule 4 of the CPC on behalf of the defendants.
Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 1 of 22 Signing Date:26.09.2025 16:59:362. The present suit has been filed seeking a decree of permanent injunction restraining the defendants from infringement of the plaintiff's patent IN 426553 titled 'COMPOSITIONS AND METHODS FOR TREATING CENTRALLY MEDIATED NAUSEA AND VOMITING' (hereinafter 'suit patent'). The suit patent concerns an oral dosage form comprising of Netupitant (200 to 400 mg, in particular, 300 mg) and Palonosetron hydrochloride (0.56 mg, which is equivalent to 0.5 mg of Palonosetron) for treating chemotherapy induced nausea and vomiting. BRIEF FACTS
3. Brief facts stated in the plaint, which are relevant in deciding the present applications, are as follows:
3.1. The plaintiff, founded in 1976, is a Swiss pharmaceutical company well-known in the field of cancer supportive care and oncology therapeutics and has a global presence. The plaintiff has a large portfolio of late and commercial stage oncology and rare disease products. 3.2. The plaintiff manufactures and markets an oral dosage form comprising Palonosetron and Netupitant, which is protected under the claims of the suit patent, under the mark AKYNZEO. In India, the plaintiff has entered into an exclusive license arrangement with its Indian partner, Glenmark Pharmaceuticals Limited, to market AKYNZEO in India. 3.3. The plaintiff, through its Indian partner, obtained the regulatory approval for commercializing AKYNZEO in India and commercially launched the same in May 2018 in India.
3.4. The defendant no.2 is a German healthcare company inter alia involved in distribution of active pharmaceutical ingredients (APIs), developing and producing generic finished dosage formulations (FDFs) and Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 2 of 22 Signing Date:26.09.2025 16:59:36 medical devices. The defendant no.1, a wholly owned Indian subsidiary of the defendant no.2, is involved in the research and development and manufacturing for the defendant no.2. The registered office of the defendant no.1 is in Hyderabad, Telangana.
3.5. The plaintiff first became aware of the defendant no.1's commercial interest in an oral dosage form comprising Netupitant and Palonosetron in March 2024, when it was notified about the defendant no.1's post-grant opposition against the suit patent wherein the defendant no.1, who is admittedly engaged in the business of manufacture and sale of pharmaceutical products, has claimed to be a 'person interested' in terms of Section 2(t) of the Patents Act, 1970 (hereinafter 'Act'). 3.6. Thereafter, in September 2024, the defendant no.2 approached the plaintiff for business discussions regarding a fixed-dose composition (FDC) tablet form comprising Netupitant and Palonosetron for the treatment of chemotherapy induced nausea and vomiting (hereinafter 'impugned product'), which the defendant no.2 was developing, and planned to commercially launch in the European Union (EU) market. This business discussion is currently ongoing.
3.7. The plaintiff also found out that the defendant no.2, in October 2024, participated in the 2024 Congress of Pharmaceutical Professionals International (CPHI) event in Milan, which is an important global pharmaceutical event connecting professionals in the pharmaceutical industry, and made a presentation on the impugned product that it was developing for the EU market.
3.8. The plaintiff learnt that the defendant no.2, in 2023, had applied for a PCT patent application, claiming priority from an Indian patent application Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 3 of 22 Signing Date:26.09.2025 16:59:36 and a European patent application, for an FDC of a Netupitant or a salt of hydrate thereof and Palonosetron or a salt or hydrate thereof, in the form of a tablet.
3.9. The plaintiff thereafter came across the product list available on the website of the defendant no.2 wherein it has been advertising the impugned product in the category of 'Under Development' drugs. 3.10. The defendant no.2 is using the plaintiff's product AKYNZEO as a reference product for its dosage form on its product list as well as the patent application filed by the defendant no.2.
3.11. The defendant no.1 is involved in manufacturing the impugned product in India and exporting the same to the defendant no.2 for the European market.
PROCEEDINGS IN THE SUIT
4. On the first day of hearing, i.e. 23rd December 2024, notice was issued in the application seeking interim injunction, being I.A. 49552/2024, to the defendants and an ex-parte ad interim order of injunction was passed in favour of the plaintiff and against the defendants. The operative direction contained in the order dated 23rd December 2024 is set out below:
"44. Consequently, till the next date of hearing, an ad interim injunction is passed restraining the defendants and all those acting for or on their behalf from commercially launching the infringing product in India without approval of this Court."
5. The defendants preferred an appeal, being FAO(OS) (COMM) 18/2025, against the aforesaid order inter alia on the ground that no part of cause of action in the present suit has arisen in India.
6. After hearing counsel for the parties, vide order dated 24th January 2025, the division bench of this Court declined to interfere with the Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 4 of 22 Signing Date:26.09.2025 16:59:36 aforesaid order and disposed of the appeal with a liberty to the defendants to file an application seeking vacation of the aforesaid order.
7. On 7th February 2025, the defendants filed an application, being I.A. 3729/2025, seeking vacation of the aforesaid ex-parte ad interim injunction order. Notice in the said application was issued to the plaintiff on 12th February 2025.
8. Pleadings in the present applications are complete.
9. Submissions were heard on behalf of the parties on 14th May 2025 and 17th July 2025, when the judgment was reserved.
10. The plaintiff thereafter filed an application, being I.A. 18360/2025, seeking to place on record additional documents to rebut the arguments raised on behalf of the defendants qua territorial jurisdiction of the Court. The aforesaid application was allowed vide order dated 1st August 2025 and the defendants were permitted to file documents in rebuttal.
11. In view of the fact that counsel for the parties wanted to make submissions with regard to the aforesaid additional documents, the judgment in I.A. 49552/2024 and I.A. 3729/2025 was de-reserved.
12. Further arguments in I.A. 49552/2024 and I.A. 3729/2025 were heard on behalf of the parties on 13th August 2025, when the judgment was reserved. The parties were also granted liberty to file written submissions.
13. Written submissions on behalf of the parties have been filed. SUBMISSIONS ON BEHALF OF THE DEFENDANTS
14. Mr. Dayan Krishnan, senior counsel appearing on behalf of the defendants, seeks vacation of the ad interim order passed by this Court primarily on the following grounds:
Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 5 of 22 Signing Date:26.09.2025 16:59:36a. There is no basis for the plaintiff to have initiated the present proceedings on a quia timet basis.
b. This Court does not have the territorial jurisdiction to entertain the present suit.
14.1. On the aspect of quia timet action, the following submissions have been made:
14.1.1. The plaintiff has distorted facts to create an impression of imminent threat that the defendant no.1 is poised to initiate commercial manufacturing of the impugned product in India.
14.1.2. The development of the impugned product is at a nascent stage as mandatory clinical trials, regulatory clearances (including permissions/ NOC required from the Central Drugs Standard Control Organization (CDSCO)/ State Drugs Control Administration (DCA)) and other prerequisites for commercialization are still pending. Import license qua importing a sample/ reference product for study is also yet to be obtained.
14.1.3. There is no pleading or material in the plaint qua the defendant no.2 that it intends to manufacture/ launch/ commercialize the impugned product in India or is otherwise intending to target Indian consumers. 14.1.4. Unlike Section 29 of the Trade Marks Act, 1999, Section 48 of the Patents Act does not cover 'advertisement' of the impugned product and the aforesaid product list on the website of the defendant no.2 does not amount to an 'offer for sale' under the provisions of Section 48 of the Act. 14.1.5. In any case, mere setting out the details of the impugned product in the category of 'Under Development' drugs on the website of the defendant no.2 does not amount to an act of advertising/ promoting the same in India. Nowhere on the website of the defendant no.2 or in its product list, Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 6 of 22 Signing Date:26.09.2025 16:59:36 it has been claimed that its 'under development' drugs shall be made available in India.
14.2. On the aspect of territorial jurisdiction, the following submissions have been made on behalf of the defendants:
14.2.1. Neither of the defendants have any presence within the territorial jurisdiction of this Court.
14.2.2. The defendant no.1 is a wholly owned subsidiary of the defendant no.2 with its registered office in Telangana, India. The defendant no.1 set up its manufacturing plant in Hyderabad. 14.2.3. The defendant no.1 has no role to play in the development/ launch of the impugned product. Addition of the impugned product in the product list of the defendant no.2, which was uploaded on the website of the defendant no.2, cannot be attributed to be an act of infringement or apprehension of infringement by the defendant no.1. 14.2.4. No material has been placed on record in support of the averment that the defendant no.1 is manufacturing the impugned product in India and exporting the same to the defendant no.2 for the EU market. 14.2.5. The defendant no.1 does not sell any of its products within the territory of Delhi.
14.2.6. The defendant no.2 is a pharmaceutical company based in Germany and does not have a manufacturing plant in India. The defendant no.2 also does not sell any of its products in India. SUBMISSIONS ON BEHALF OF THE PLAINTIFF
15. Mr. Jayant Mehta, senior counsel appearing on behalf of the plaintiff, opposes the aforesaid submissions made on behalf of the defendants:Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 7 of 22 Signing Date:26.09.2025 16:59:36
15.1. The following submissions have been made in support of a quia timet action:
15.1.1. The impugned product is being developed/ manufactured by the defendant no.1 in India on behalf of the defendant no.2. This is evident from the fact that the defendant no.1 filed a post-grant opposition against the suit patent.
15.1.2. The fact that the defendants are commercially interested in the impugned product is a sufficient basis for the plaintiff's apprehension of an infringement of the suit patent by the defendants in respect of quia timet action.
15.1.3. The defendant no.2 is actively involved in promoting the impugned product on its product list/ website, and in various international pharmaceutical events such as CPHI, as a product 'under development' for commercial launch in the EU market. This shows that the defendants may soon undertake steps to commercially infringe the suit patent (including by way of commercial manufacture and/ or launch of the impugned product in India and its export from India).
15.1.4. The defendant no.2, on its own website, has mentioned that it has a manufacturing plant in India.
15.1.5. The defendant no.1 is involved in manufacturing the impugned product in India and is exporting the same to the defendant no.2 for the EU market.
15.2. On the aspect of territorial jurisdiction, the following submissions have been made:Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 8 of 22 Signing Date:26.09.2025 16:59:36
15.2.1. Since other pharmaceutical products of the defendant no.1 are sold in Delhi, the defendants are carrying on business in Delhi. In particular, the products of the defendant no.1 are listed on IndiaMart. 15.2.2. The defendants have customers, consumers, buyers and a host of other persons for various aspects of their business activities in Delhi. 15.2.3. The website of the defendant no.2, wherein the impugned product is listed/ advertised, can be accessed from within the jurisdiction of this Court.
ANALYSIS AND FINDINGS
16. I have heard counsel for the parties and perused the material on record.
17. At the outset, it may be relevant to refer to the averments in the plaint with regard to 'cause of action' and 'territorial jurisdiction'. For ease of reference, paragraphs 47 and 48 of the plaint are set out below:
"Cause of Action
47. It is submitted that the cause of action first arose in late March, 2024 when the Defendant No. 1 filed a post-grant opposition against the suit patent. The cause of action once again arose in October, 2024 when the Plaintiff found out that the Defendants had been promoting the infringing product at international pharmaceutical events like CPHI 2024. The cause of action once again arose when the Plaintiff found out that the Defendant No. 2's infringing product was displayed in its product list (available on its website) in the category of products under development. The cause of action is a continuing one and it is humbly submitted that it will continue to subsist until this Hon'ble Court restrains the Defendants from carrying on their infringing activities.
Jurisdiction
48. It is respectfully submitted that this Hon'ble Court has the jurisdiction to try and entertain the present suit under Section 20 of the Code of Civil Procedure, 1908 as:
a. The Defendants' infringing product is being displayed on its website, which can also be accessed from within the jurisdiction of this Hon'ble Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 9 of 22 Signing Date:26.09.2025 16:59:36 Court. The Defendants' website also has an application which allows for customers, including customers in Delhi, to get in touch with the Defendants to place orders for products or enter into commercial arrangements with the Defendants;
b. When the Defendants' infringing product is commercially launched by them, it would be available for sale in Delhi, giving rise to a cause of action within the jurisdiction of this Hon'ble Court; c. It is verily believed that the other pharmaceutical products of the Defendants are available for sale in Delhi. the Defendants by making such products available for sale in Delhi can be said to be carrying on business in Delhi and have thus purposefully availed themselves of the jurisdiction of this Hon'ble Court; and d. A part of the cause of action has arisen in New Delhi as the Defendants have customers, consumers, buyers and host of other persons for various aspects of their business activities in New Delhi and are involved in a large number of activities in New Delhi. All the above establish beyond doubt that the Defendants have targeted New Delhi and have purposefully availed of the jurisdiction of this Hon'ble Court. It is therefore submitted that this Hon'ble Court has the necessary jurisdiction to try and entertain the present suit."
18. The fulcrum of the submissions made on behalf of the defendants for vacating the ad interim order dated 23rd December 2024 is based on the following factors:
a. No foundation with regard to a quia timet action has been laid down by the plaintiff.
b. This Court does not have the territorial jurisdiction to try and entertain the present case.
19. I shall deal with both the aforesaid propositions seriatim. Quia Timet Action
20. To substantiate the case of a quia timet action, the following assertions have been made in the plaint:
a. The defendant no.1 has filed a post-grant opposition against the suit patent granted in favour of the plaintiff.Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 10 of 22 Signing Date:26.09.2025 16:59:36
b. There are ongoing business discussions between the plaintiff and the defendant no.2 concerning the impugned product. c. The defendant no.2 made a presentation at the CPHI event held in Milan, Italy concerning the impugned product being developed by the defendants.
d. The defendants have been advertising the impugned product on the website and product list of the defendant no.2. Reliance has been placed on the website as well as product list of the defendant no.2 to show that the impugned product is likely to be launched in the third quarter of 2025.
21. Per contra, the defendants have made the following submissions in response:
a. The development of the impugned product is only at a nascent stage in India and till date, neither any regulatory clearances have been obtained nor any clinical trials have been conducted for the impugned product. It is further stated that the defendants have no immediate plan to enter the Indian market.
b. The post-grant opposition has not been filed on behalf of the defendant no.1 as an 'inventor' of the impugned drug but being a pharmaceutical company also involved in research and development of various medicinal drugs.
c. The impugned product is being shown in the category of 'Under Development' drugs on the website and product list of the defendant no.2. The term 'dossier status' showing 'Q3 2025' implies that the data collation from the development of the product would be completed between July-September 2025, the third quarter of 2025.Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 11 of 22 Signing Date:26.09.2025 16:59:36
Subsequently, this data would be sent for registration to the regulatory authorities in the EU only and the registration process, if successful, would further take an estimated 16-18 months.
22. The pre-requisites for a quia timet action came up for consideration before a coordinate bench of this Court in Novartis v. Zydus Healthcare1, a judgment relied upon by the plaintiff, even though the consideration therein was in the context of Order VII Rule 11 of the CPC. The relevant observations in paragraph 50 of the said judgment are set out below:
"50. What has to be seen, therefor, in assessing whether a quia timet plaint can be rejected outright under Order VII Rule 11, is
(i) whether the plaint alleges
(a) a deliberate expressed intention to engage in activity the result of which would raise a strong possibility of infringement,
(b) that the activity to be engaged in is imminent, and
(c) that, if the defendant were to engage in the activity, the plaintiff would suffer substantial, if not irreparable, prejudice,
(ii) that the claim of the plaintiff is not merely speculative, in the hope that sufficient facts, to support the allegations, would be gleaned on discovery during the course of trial, and
(iii) that the plaint contains cogent, precise and material recitals of facts."
[emphasis supplied]
23. Having considered the rival submissions, in my prima facie view, the plaintiff has failed to satisfy the requirements of a quia timet action for the following reasons:
a. Merely filing a post-grant opposition by the defendant no.1 against the suit patent cannot in itself imply that the defendants are about to launch the impugned product in India.1
2022 SCC OnLine Del 4373 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 12 of 22 Signing Date:26.09.2025 16:59:36 b. The plaintiff and the defendant no.2 are admittedly engaged in business discussions for the development of the impugned product for the EU market.
c. Admittedly, in the presentation on the impugned product by the defendant no.2 in CPHI event in Milan, Italy, it was stated that the impugned product is being developed for the EU market. d. It is also an admitted position that before commercially launching a drug in India, a party has to conduct clinical trials and testing and based thereupon, obtain the approval of the regulatory authorities. None of the aforesaid activities have been carried out by the defendants yet and nor has any regulatory approvals been obtained by the defendants.
e. No averment has been made in the plaint that regulatory approvals have been obtained for the impugned product even in the EU. f. The product list of the defendant no.2 for October 2024 filed by the plaintiff along with the plaint as well as the latest product list for May 2025 filed as an additional document clearly shows the impugned product is listed in the category of 'Under Development' drugs. Further, as noted above in paragraph 21(c) above, the defendants have given a plausible explanation for showing the 'dossier status' as 'Q3 2025' in the latest product list for May 2025.
g. Nothing has been placed on record to substantiate that the impugned product was planned to be launched in India or to be exported to Europe from India.
h. Unlike Section 29 of the Trade Marks Act, 1999, which includes any act of advertisement using the infringing mark as one of the infringing Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 13 of 22 Signing Date:26.09.2025 16:59:36 activities, Section 48 of the Act does not provide for advertisement. The minimum threshold under Section 48 of the Act is that there must be an 'offer for sale' and the aforesaid listing of the impugned product on the defendant no.2's website/ product list as a drug 'under development', in my prima facie view, would not amount to an 'offer for sale'.
24. Reliance on behalf of the plaintiff has been placed on the judgments of this Court in Shilpa Medicare v. Bristol Myers Squibb Company2, Teva Pharmaceutical Industries v. Natco Pharma3 and Novartis (supra) in support of its contention that the present suit qualifies as a legitimate quia timet action.
25. I have perused the aforesaid judgments. In all the aforesaid judgments, this Court was dealing with applications under Order VII Rule 10 of the CPC seeking return of plaint or under Order VII Rule 11 of the CPC seeking rejection of plaint. The Court, in the aforesaid judgments, rejected the plea of the defendants on the ground that for the purposes of Order VII Rule 10 or 11 of the CPC, the court only needs to consider the averments made in the plaint. The parameters for deciding an application under Order VII Rule 10 or 11 of the CPC are quite different from deciding an application for interim injunction under Order XXXIX Rules 1 and 2 of the CPC. In an application under Order VII Rule 10 or 11 of the CPC, one has to only see the averments made in the plaint on a demurrer, whereas for the purposes of an application under Order XXXIX Rules 1 and 2 of the 2 2015 SCC OnLine Del 11164 3 2014 SCC OnLine Del 3373 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 14 of 22 Signing Date:26.09.2025 16:59:36 CPC, the Court can consider pleadings as well as documents filed on behalf of the defendants.
26. In this regard, counsel for the defendants has placed reliance on the judgments of the division bench of this Court in Allied Blenders & Distillers v. R.K. Distilleries4 and Allied Blenders & Distillers v. Prag Distillery5.
27. In Allied Blenders & Distillers v. R.K. Distilleries (supra), a division bench of this Court has held that while for the purposes of Order VII Rule 10 of the CPC, the issue of jurisdiction has to be decided only on the basis of what has been stated in the plaint, for the purposes of an application under Order XXXIX Rules 1 and 2 of the CPC, the Court may also take note of the contentions of the defendants in the written statement as well as other pleadings. Hence, the Court need not consider the pleas raised by the plaintiff on a demurrer for the purposes of an application for interim injunction. Accordingly, it may be possible that a Court may not return a plaint on the ground of territorial jurisdiction under Order VII Rule 10 of the CPC, but on the same facts and circumstances, it may form a prima facie view that the plaintiff has been unable to establish the territorial jurisdiction of the Court and, hence, deny grant of interim injunction in an application under Order XXXIX Rules 1 and 2 of the CPC.
28. The same division bench of this Court, in Allied Blenders & Distillers v. Prag Distillery (supra), held that the defendant will be entitled to raise the issue of territorial jurisdiction as an objection to the grant of interim injunction, even though such an objection may not be sustainable for return of plaint under the provisions of Order VII Rule 10 of the CPC.
42017 SCC OnLine Del 7224 5 2017 SCC OnLine Del 7225 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 15 of 22 Signing Date:26.09.2025 16:59:36
29. Pertinently, the division bench of this Court in Shilpa Medicare (supra), a judgment relied upon by the plaintiff, while dismissing the appeal preferred against the judgment of the single bench, noted the following observations made in Pfizer Products v. Rajesh Chopra6, which are relevant for the adjudication of the present applications:
"17. Pfizer Products, Inc v. Rajesh Chopra 2006 (32) PTC 301, is an authority for the position that in a quia timet action, "Whether the threat perception is justified or not is another matter which has to be considered and decided upon in the application filed by the plaintiff under Order 39 Rules 1 and 2 or on merits when the suit is taken up for disposal. Insofar as Order 7 Rule 10 is concerned, assuming that whatever is stated in the plaint is correct, one would have to also assume that the threat or the intention of the defendants to sell and offer for sale the offending goods in Delhi is also correct. Therefore, if the threat exists then this court would certainly have jurisdiction to entertain the present suit." [Para 12]"
[emphasis supplied]
30. Even on facts, it is worth mentioning that in Novartis (supra) and Shilpa Medicare (supra) relied upon by the plaintiff, manufacturing license for the impugned drug was already obtained by the defendant in India, which is not the case in the present suit.
31. Therefore, the aforesaid judgments relied on behalf of the plaintiff, wherein the plaint was considered on a demurrer, do not advance the case of the plaintiff.
32. Therefore, in my prima facie view, the plaintiff has failed to place any credible material on record to lead to an apprehension of an 'imminent threat' that the defendants would be launching the impugned product in 6 2006 (32) PTC 301 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 16 of 22 Signing Date:26.09.2025 16:59:36 India, or even in the EU, in the immediate future, which is a pre-requisite for initiating a quia timet action.
Territorial Jurisdiction
33. From a perusal of the memo of parties, it is clear that both the defendants no.1 and 2 are located outside the jurisdiction of this Court and do not have any branch or office in Delhi.
34. On behalf of the defendants, it is contended that none of the products of the defendants are sold within the territorial jurisdiction of this Court.
35. It has been averred on behalf of the plaintiff that "it is verily believed that other pharmaceuticals products of the defendants are available for sale in Delhi"7 and "defendants have customers, consumers, buyers and host of other persons for various aspects of their business activities in New Delhi"8. However, the plaintiff, along with the plaint, has failed to file any material to show that products of either of the defendants are available for sale in Delhi.
36. If it was the plea of the plaintiff that the defendants' products are being sold within the jurisdiction of this Court, at the very least, the plaintiff could have filed some documentary evidence to show that the defendants' products are being sold within the jurisdiction of this Court.
37. To overcome this difficulty, the plaintiff filed additional documents after the judgment was reserved by this Court, which were permitted to be taken on record.
38. The plaintiff has placed on record a printout from the portal of IndiaMart to show that a product manufactured by the defendant no.2 under 7 Paragraph 48(c) of the Plaint 8 Paragraph 48(d) of the Plaint Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 17 of 22 Signing Date:26.09.2025 16:59:36 the name POSATIF is available for sale in New Delhi (pages 31-38 of the additional documents filed on behalf of the plaintiff on 28th July 2025).
39. In response, it has been submitted on behalf of the defendants that POSATIF is an anti-fungal drug which is manufactured by the defendant no.1 in Hyderabad only for export purposes. It was only during the COVID- 19 pandemic, this drug was sold in India as per the following two purchase orders:
a. Purchase order dated 24th May, 2021 issued by Telangana Government for purchase of 4,98,000 tablets (Document 2 of the defendants' additional documents in rebuttal filed on 7th August 2025). b. Purchase order issued by one Skandana Pharmaceutical dated 23rd September, 2021 to the defendant no.1 for supply of POSATIF in Hyderabad (Document 3 of the defendants' additional documents in rebuttal filed on 7th August 2025). To be noted, Skandana Pharmaceutical is a company based in Hyderabad.
40. Along with their additional documents in rebuttal, the defendants have placed on record the complete listing of POSATIF on the website of IndiaMart which shows that the aforesaid product is available for delivery only within the local area of Hyderabad (Document 8 of the defendants' additional documents in rebuttal filed on 7th August 2025). The relevant extracts from IndiaMart showing the shipping information with respect to the aforesaid product is set out below:Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 18 of 22 Signing Date:26.09.2025 16:59:36
41. The defendants have also placed on record search results from various other e-pharmacies, such as Netmeds, Apollo Pharmacy, Truemeds, Pharmeasy and Tata 1mg, to show that POSATIF is not listed on any of their portals.
42. It is not even the case of the plaintiff that it has placed an order for POSATIF on IndiaMart or any other third-party platform and that the same has been supplied in Delhi.
43. The plaintiff has also placed on record the profile of the defendant no.1 on the website of IndiaMart. However, even that does not show that any of the products of the defendant no.1 are available for sale in the territory of Delhi.Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 19 of 22 Signing Date:26.09.2025 16:59:36
44. As regards the invocation of territorial jurisdiction on the basis of the impugned product being displayed on the website of the defendant no.2 and the said website being accessible in Delhi, the said issue is squarely covered against the plaintiff by the judgment of the division bench in Banyan Tree Holding v. A Murali Krishna Reddy9. The relevant extracts from Banyan Tree (supra) are set out below:
"45. This court holds that in order to prima facie establish that the Defendant purposefully availed of the jurisdiction of this court, the Plaintiff would have to show that the Defendant engaged in some commercial activity in the forum State by targeting its website specifically at customers within that State. This is consistent with the law laid down in Cybersell and reiterated later in Toys R Us. It is also consistent with the application of the 'tighter' version of the 'effects' test which is 'targeting'. In any action for passing off or infringement, it would have to be shown that the Defendant by using its mark intended to pass off its goods as that of the Plaintiff's. A mere hosting of a website which can be accessible from anyone from within the jurisdiction of the court is not sufficient for this purpose. Also a mere posting of an advertisement by the Defendant depicting its mark on a passive website which does not enable the Defendant to enter into any commercial transaction with the viewer in the forum state cannot satisfy the requirement of giving rise to a cause of action in the forum state. Even an interactive website, which is not shown to be specifically targeted at viewers in the forum state for commercial transactions, will not result in the court of the forum state having jurisdiction. In sum, for the purposes of Section 20(c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant, the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus" or "interactive" was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. Question no. (ii) is answered accordingly."
[emphasis supplied] 9 2009 SCC OnLine Del 3780 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 20 of 22 Signing Date:26.09.2025 16:59:36
45. In the present case, even after filing additional documents, the plaintiff has failed to show that an order for any of the products of the defendants has been placed on their website or IndiaMart and that the same has been delivered in Delhi. Mere accessibility of a website within the territorial jurisdiction of this Court would not amount to specific targeting of customers/ consumers in Delhi in the absence of any commercial transaction executed through the said website. Thus, the test of 'purposeful availment' of customers/ consumers within the jurisdiction of this Court, as laid down in Banyan Tree (supra) has not been satisfied in the present case.
46. In New Life Laboratories v. Dr. Ilyas New Life Homoeo and Herbals10 relied on behalf of the defendants, a coordinate bench of this Court declined to grant an interim injunction in favour of the plaintiff on the ground that the plaintiff has failed to place any material on record to show that the defendants are selling their products within the jurisdiction of this Court. Hence, on a prima facie view, territorial jurisdiction of this Court was not made out and an interim injunction was denied.
47. The observations made by the coordinate bench in New Life Laboratories (supra) is squarely applicable in the present case. The plaintiff has failed to place on record any material to show that any of the products of the defendants are available for sale within the jurisdiction of this Court or they have any customers in Delhi.
48. Therefore, in my prima facie view, the plaintiff has failed to make out a case for the territorial jurisdiction of this Court.
10Order dated 21st July 2023 in CS(COMM) 323/2023 Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 21 of 22 Signing Date:26.09.2025 16:59:36 CONCLUSION
49. In view of the discussion above, on both parameters of territorial jurisdiction as well as quia timet action, the plaintiff has failed to make out a prima facie case for grant of interim injunction. Hence, the ad interim injunction granted by this Court in favour of the plaintiff on 23rd December 2024 stands vacated.
50. Consequently, I.A. 3729/2025 filed by the defendants under Order XXXIX Rule 4 of the CPC is allowed and I.A. 49552/2024 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC is dismissed. CS(COMM) 1188/2024
51. List before the Roster Bench on 14th November, 2025 AMIT BANSAL (JUDGE) SEPTEMBER 26, 2025 Vivek/-
Signature Not Verified Digitally Signed By:AARZOO CS(COMM) 1188/2024 Page 22 of 22 Signing Date:26.09.2025 16:59:36