The filing of repeated applications and non-disclosure of the same to the Court hearing the matter, and the concealment of the correct facts from the Court clearly gives an impression to this Court that the Plaintiff’s conduct is not bonafide. In any event, the relief sought is not liable to be granted.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th June, 2020
CS(COMM) 201/2017
SHOGUN ORGANICS LTD Vs GAUR HARI GUCHHAIT & ORS
CORAM:
JUSTICE PRATHIBA M. SINGH
I.A.4414/2020 in CS(COMM) 201/2017
1. This hearing has been held by video-conferencing.
2. In application being I.A.4414/2020, listed today the prayer is:
“a) pass an order directing Defendant No. 2 to sell unused/unsold 4520 kgs stock of D-Trans Alletherin to the Plaintiff at Rs. 4,330 per kilogram.”
3. The present suit for infringement of patent no. IN 236630 was decreed on 14th August 2020. A permanent injunction was granted along with a direction to render accounts of profits and payment of 5% of the sale value as compensation/ loss of profits to the Plaintiff. Appeal against the said judgement/decree was dismissed on 11th October 2019. Vide order dated 29th January 2020, the Ld. Single Judge, after disclosure of accounts by the Defendants directed the payment of Rs. 6,77,91,143/- as loss of profits and Rs. 12,28,000/- as costs.
4. Thereafter an application being I.A. no. 3946/2020 was filed by Defendant No.2 seeking permission to sell some `unsold stock’ to the tune of 4250 kgs. Arguments in the said application were heard on 9th June, 2020 and the matter was reserved for orders. On 11th June 2020, orders were passed in the said application. At the time when the matter was listed for pronouncing orders, the submission that the Defendant no.2 ought to sell the unsold stock to the Plaintiff was made by the Ld. Counsel for the Plaintiff. Thus, it is inexplicable as to why, for the same relief, another application has now been filed.
5. At this stage, ld. counsel for the Plaintiff – Ms. Rajeshwari H. seeks permission to withdraw the application.
5. This Court is of the opinion that the Plaintiff ought not to be permitted to withdraw this application, inasmuch as the chronology of events in this case shows the present application is a complete abuse of process.
6. I.A. 3946/2020 was first listed before a ld. Single Judge of this Court on 21st May, 2020. The said application was thereafter placed before this Bench on 27th May, 2020 subject to the orders of the Hon’ble Chief Justice. On 27th May, 2020, the matter was heard in part, and the Defendants were directed to disclose certain details of the unsold stock, on affidavit and the matter was adjourned to 9th June 2020. Two days before the said hearing, the Plaintiff filed two applications seeking discovery of certain documents. Detailed arguments were heard on all the applications on 9th June, 2020 and the matter was reserved for orders.
7. In the meantime, on 9th June, 2020, the present application being I.A.4414/2020 is stated to have been filed. In this application, there is no mention of the fact that this Court had heard the matter on merits and had reserved orders. To this, Ms. Rajeshwari submits that the application was filed prior to the hearing itself. If that was the position, there was no reason whatsoever, as to why the filing of this application was not disclosed to the Court during the hearing on 9th June 2020.
8. Orders in I.A.3946/2020 along with other pending applications were pronounced on 11th June, 2020. On the said date also, the Plaintiff did not inform the Court that the present application had been filed and was still pending.
9. The application under consideration i.e. I.A. 4414/2020 was then listed on 12th June, 2020. The ld. Single Judge before whom the said application was listed, has placed the matter to be heard today, before this Bench.
10. When a specific question was asked to ld. counsel for the Plaintiff as to why multiple applications are being filed in respect of the same subject matter and why no disclosure was made while the matter is being continuously heard, no answer is forthcoming.
11. At the commencement of the hearing today, ld. counsel for the Plaintiff, after having been apprised of these facts sought to withdraw the application and the Court was initially inclined to permit withdrawal of the application.
12. However, Mr. Tiwari, ld. counsel appearing for the Defendant No.2 submits that the same prayer i.e., that the stock ought to be sold to the Plaintiff, has now been made before the ld. Division Bench in an appeal filed against order dated 11th June, 2020, which is listed today. The factum of filing of the appeal and the same relief having been sought was again not disclosed during today’s hearing by Ld. Counsel for the Plaintiff.
13. The filing of repeated applications and non-disclosure of the same to the Court hearing the matter, and the concealment of the correct facts from the Court clearly gives an impression to this Court that the Plaintiff’s conduct is not bonafide. In any event, the relief sought is not liable to be granted. The Defendant no.2 has been permitted by this court vide order dated 11th June 2020 to sell the stock on the same terms as was stipulated in the judgement/decree dated 14th August 2019. In fact, further safeguards such as disclosure of batch numbers have also been incorporated in the said order to ensure that only the unsold stock is sold and no fresh stock is manufactured or sold by Defendant no.2. At the time when the order was pronounced on 11th June 2020, a similar oral request that the stock should be sold to the Plaintiff or the customers to whom sales are made ought to be disclosed, was rejected by this Court. The Defendant No.2 cannot be forced to sell its products to the Plaintiff alone and not to its own customers. The relief sought is thus totally misplaced. The present application is a gross abuse of process. The same is accordingly dismissed with Rs.50,000/- as costs to be paid to the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM Cares Fund) on or before 31st July, 2020.
PRATHIBA M. SINGH
JUDGE
JUNE 16, 2020.
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