CS COMM--201/2017. Case: SHOGUN ORGANICS LTD. Vs. GAUR HARI GUCHHAIT & ORS.. High Court of Delhi (India)

Case NumberCS COMM--201/2017
CitationNA
Judgement DateAugust 14, 2019
CourtHigh Court of Delhi (India)

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on:16th Date of decision: 14th August, + CS (COMM) 201/2017

SHOGUN ORGANICS LTD. ..... Plaintiff

Through: Ms. Rajeshwari H., Mr. Tahir A.

Ms. Swapnil Gaur, Advocates 9910206718)

versus

GAUR HARI GUCHHAIT & ORS. ..... Defendant

Through: Mr. Manoj Kumar Sahu and Mr. P. C.

Arya, Advocates for D-1 (M: 9953689591 & 9818021816) Mr. Manav Kumar, Advocate for D & 5. (M: 9654448699)

CORAM:

JUSTICE PRATHIBA M. SINGH

JUDGMENT Prathiba M. Singh, J.

  1. The Plaintiff - Shogun Organics Limited, a company engaged research, manufacture and sale of mosquito repellents has filed the suit seeking a permanent injunction restraining infringement of its P IN-236630 (IN‘630). The patent relates to a “Process for manufacturing trans Allethrin,” which is used as an active ingredient in mosquito repellent and other mosquito control products.

  2. The claim of the Plaintiff is that it researched and developed a six-step process for synthesis of d-trans Allethrin, which is an insecticide. explanation of the process is given in the specification and the claims. patent was applied for on 10th May, 2007 and the date of grant was November, 2009. A pre-grant opposition was filed by Defendant

    CS (COMM) 201/2017 Page

    Manaksia Ltd., which was decided in favour of the Plaintiff and the was thereafter granted on 13th November, 2009. The grant was published on 20th November, 2009.

  3. After grant of the patent, a post-grant opposition was filed Defendant No.5, an Italy-based company named Endura SPA, Defendant No. 4. On 26th June, 2013 the post-grant opposition successful and the patent was revoked. On 18th August, 2014, the IPAB aside the order of the patent office and restored the patent. Since then, patent remains valid. The Defendants impleaded in the suit are M/s Chemicals Pvt. Ltd. - Defendant No.2, and one of its Directors as Defendant No.1, Orachem Pvt. Ltd. - a trading partner of M/s Solex Chemicals Defendant No.3, Defendant No.4 - Manaksia Ltd. has made investments M/s Solex Chemicals Pvt. Ltd. and Endura SPA has taken over the and the manufacturing facilities of Manaksia Ltd.

  4. After the grant of patent, the Plaintiff conducted investigations, revealed that the Defendants were selling d-trans Allethrin in India themselves and through various distributors, retailers, etc. The ingredient was also sold to manufacturers of other mosquito repellents as coils and sprays under the brands Maxo, Mortein, etc. It was revealed to the Plaintiff that Manaksia Ltd. was granted a registration Section 9(4) of the Insecticides Act, 1968 for indigenous manufacture trans Allethrin. Owing to the fact that Manaksia‟s licence was under Section 9(4), which is a follow-on licence unlike a new/original licence, the Plaintiff suspected that the process of the Defendants would be identical to that of the Plaintiff.

  5. The Plaintiff then bought a product under the brand name „

    CS (COMM) 201/2017 Page

    which used the Defendants‟ active ingredient. At that stage, the also came to know that Manaksia Ltd. had transferred its licence under Insecticides Act to M/s. Solex Chemical Pvt. Ltd. All the together were using the same insecticide licence for manufacturing Allethrin. The Plaintiff got certain tests conducted and found that there were various marker compounds, as also specific impurities which were unique to the Plaintiff‟s process. The Plaintiff also found that the isomer content also similar to that of the Plaintiff‟s product, thus, the Plaintiff that the Defendants were using the patented process. Accordingly, Plaintiff filed the present suit seeking a permanent injunction infringement of its patent, as also damages/ rendition of accounts.

  6. On 19th December, 2014, summons were issued in the suit. On December, 2014, the following order was passed:

    “ Let the written statement be filed by the defendants within four weeks. Replication, if any, be filed within two weeks thereafter.

    List on 23rd February, 2015.

    Learned counsel for the defendants is agreeable that in the written statement, he will disclose the fact as to whether the defendants have actually started manufacturing of the impugned goods or not and in case, the defendants have already started, then he will provide the details of the batch numbers. ”

  7. Since there was no compliance of the above order which directed Defendants to inform the Court as to whether they were manufacturing goods, affidavits were directed to be filed vide order dated 21st July,

    The said order also directed the Defendants to disclose their process. said order reads:

    “Learned counsel for the plaintiff has pointed out that

    CS (COMM) 201/2017 Page

    the order dated 23rd February, 2015 where the defendants agreed to disclose in their written statement as to whether they have actually started manufacturing of the impugned goods or not and in case they have already started to do so, they will provide the details of the batch numbers. Learned counsel for the defendants have informed that they have not disclosed the said information in their written statements. Let the affidavit(s) be filed by the defendants in terms of the order dated 23rd February, 2015 within two weeks from today. In the said affidavit (s), they will also disclose the process of their products in addition to the earlier information.”

    In response thereto, the affidavits filed by the Defendants read-

    Affidavit filed on behalf of Defendant No. 1, 2 & 3

    “I, Ruchi Singh W/o Vinay Kumar Singh, aged about 39 years, office at 2B, Ground Floor, Solitaire Plaza, M.G. Road, Gurgaon – 122002, presently at New Delhi, do hereby solemnly affirm and declare as under:

  8. That I am the constituted attorney of the Defendant no. 1, 2 & 3 in the present matter and such as I am well conversant with the facts of the case competent to swear this affidavit.

  9. That this affidavit is being filed in compliance with the solemn order passed by this Hon‘ble Court on 21st July, 2015, wherein the Hon‘ble Judge has been pleased to direct, ―Let the affidavit(s) be filed by the defendants in terms of the order dated 23rd February, 2015 within two weeks from today. In the said affidavit (s), they will also disclose the process of their products in addition to the earlier information.‖

  10. That it is humbly submitted that the deponent herein has already submitted an affidavit before this Hon‘ble Court on 30th April 2015 disclosing the particulars of the batch numbers of the products produced by

    CS (COMM) 201/2017 Page

    Defendant no. 2 (Solex Chemicals Pvt. Ltd.). In the said affidavit it was also stated that Defendant No. 1 (Gaur Hari Gurchhait) and Defendant N no. 3 (Aura Chem Pvt Ltd) are not engaged in manufacturing Dtrans allethrin.

  11. The particulars disclosed in the earlier affidavit is reproduced herein below:

    Name of Defendant s

    Manufactu ring D-trans allethrin

    Using D-trans allethrin for final product

    Batch no. Year of manufactur e

    CIB no.

    Gaur Hari Gurchhait (Defendan t No. 1)

    No No N/A N/A N/A

    2015 CIR

    66,087/2007 D-TRANS ALLETHRIN( T) (272) 1261

    Solex Chemicals Pvt. Ltd (Defendan t No. 2)

    Yes No Latest produced batch No. AL201504 04 Latest batch No provided to Manaksia: AL201504 04 invoice no 006 dated April 11th, 2015

    Aura Chem Pvt Ltd (Defendan t No. 3)

    No No N/A N/A N/A

  12. That the defendant no. 1,2 & 3 have provided the details as directed by this Hon‘ble Court. No other details are available or have been suppressed by the

    CS (COMM) 201/2017 Page

    defendants.

  13. In respect of the direction of the Hon‘ble Court to disclose the process of the products of the defendants, the deponent respectfully submits that the plaintiff‘s patent number no. 236630 is under challenge in a post grant opposition proceeding before the Learned Controller of Patents. That on 26th June, 2013 the Learned Controller of Patents had allowed the post grant opposition and revoked the patent. Subsequently, the plaintiff preferred an appeal before the IPAB. By an order dated 18th August, 2014 the post grant opposition has been remanded back to the Patent office for a de novo hearing. The matter is part heard. The defendants crave leave to make further submissions in this regard on the next date of hearing.‖

    Affidavit filed on behalf of Defendant Nos. 4 and 5

    “I, Deb Jyoti Ghosh, S/o Baidyanath Ghosh, aged about 35 years, office at 2B, Ground Floor, Solitaire Plaza, M.G. Road, Gurgaon – 122002, presently at New Delhi, do hereby solemnly affirm and declare as under:

  14. That I am the constituted attorney of the Defendant nos. 4 & 5 in the present matter and such as I am well conversant enough with the facts of the case and competent to swear this affidavit.

  15. That this affidavit is being filed in compliance with the solemn order passed by this Hon‘ble Court on 21st July, 2015, wherein the Hon‘ble Judge has been pleased to direct, ―Let the affidavit (s) be filed by the defendants in terms of the order dated 23rd February, 2015 within two weeks from today. In the said affidavit

    (s) they will also disclose the process of their products in addition to the earlier information.‘

  16. That it is humbly submitted that the deponent herein has already submitted an affidavit before this Hon‘ble Court on 30th April 2015 disclosing the particulars of the batch numbers of the products used by Defendant

    CS (COMM) 201/2017 Page

    No. 4 (Manaksia Ltd.). In the said affidavit it was also stated that Defendant No. 5 (Endura Spa) is not engaged in manufacturing D-trans allethrin.

  17. The particulars disclosed in the earlier affidavit is reproduced here in below:

    Name of Defendants

    Manuf acturin g D-trans allethri n

    Using D-trans allethrin for final product

    Batch no. Year of manufact ure

    CIB no.

    Manaksia (Defendant no. 4)

    No Yes Latest produced batch No. 12 hrs coil MHP364 month code – April 2015 Latest batch No. produced with d-trans allethrin provided by Solex (by using batch AL20150304 of March 2015):

    12 hrs coil MHP364 month code – April 2015

    CIB registration no. for 12 coil (d Allethrin) CIR...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT