Document Fragment View

Matching Fragments

13. It is a settled law that if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless i.e. not disclosing a clear right to sue, plaint must be rejected under Order VII Rule 11 CPC. If on a consideration of the plaint together with the documents filed with the plaint, it appears to the Court that Plaintiffs have set out a purely illusory cause of action and no real cause of action is disclosed, the suit must not continue. [Ref. T. Arivandandam v. T.V. Satyapal and Another, (1977) 4 SCC 467; I.T.C. Limited v. Debts Recovery Appellate Tribunal and Others, (1998) 2 SCC 70; Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal Representatives, (2020) 16 SCC 601; and Dilip Vasant Shetye and Another v. Angela P. Oliveira and Others, 2022 SCC OnLine Bom 2292]. Plaintiffs have failed to show in the plaint any cause of action arising out of violation of any legal right subsisting in the Plaintiffs or even a certain or imminent threat that Plaintiffs' rights will be violated and the plaint fails on both counts and merits rejection.

CONTENTIONS ON BEHALF OF PLAINTIFFS:-

19. It is denied that the plaint discloses no cause of action or that the Plaintiffs have no legal right to institute the present suit and the contentions raised by Cadila are wholly misconceived. While adjudicating an application under Order VII Rule 11 CPC, the Court is not to go into the merits of the Defendant's case and is only required to examine the plaint on a demurrer and the documents filed along with the plaint to see if it discloses any cause of action to sue the Defendant. Plaint has to be read meaningfully and as a whole and can only be rejected if it is wholly vexatious and meaningless. [Ref. Sejal Glass Limited v. Navilan Merchants Private Limited, (2018) 11 SCC 780; Abdul Gafur and Another v. State of Uttarakhand and Others, (2008) 10 SCC 97; Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510; and Srihari Hanumandas Totala v. Hemant Vithal Kamat and Others, (2021) 9 SCC 99]. In the present case, the plaint clearly discloses a cause of action as Plaintiffs seek to enforce their common law rights of passing off and also challenge the non-compliance of the applicable laws including Biosimilar Guidelines by the Defendants while granting approval to Cadila for its purported biosimilar drug.

31. Plaint lacks material particulars and is wholly vexatious and fails to meet the basic requirement of disclosing a cause of action which is a bundle of facts giving a right to sue. Plaint is silent on the question whether there is any bar in law against Hetero to manufacture, market and sell its drug under INN 'Bevacizumab', especially when DCGI has authorized and certified that Hetero's drug is compliant with the procedures envisaged in law. There is no identification of the data in the plaint which is allegedly misappropriated or violates Plaintiffs' copyright.

32. Plaint does not disclose any cause of action. There is no challenge to the provisions of the Drugs Act, Drugs Rules and Biosimilar Guidelines. Most of the paragraphs in the plaint either contain a factual narrative or contain a comparison between the two rival drugs and/or have references to the authorization/approval given to Hetero's drug. Remaining paragraphs while adverting to the purported irregularities pertaining to clinical trial of Hetero's drug are merely in the nature of statements of facts and the guidelines required to be followed. Allegations in the context of dilution of goodwill are bald with insufficient averments and do not disclose a cause of action in favour of the Plaintiffs and/or how they are aggrieved. There are no pleadings to support the allegation of misrepresentations amounting to alleged passing off against Hetero. Plaintiffs have been unable to plead how Hetero's drug is biosimilar to Plaintiffs' 'Bevacizumab' or why the approvals granted by an expert body are illegal. Plaintiffs are only trying to create an illusion of cause of action through clever drafting and despite elaborate pleadings, no clear right to sue emerges from the reading of the plaint. [Ref.: Dilip Vasant Shetye and Another (supra) and Raghwendra Sharan Singh (supra)].