IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.1001 of 2008 and M.P.Nos.2 & 4 of 2009 and 1 of 2010 and Memo SR.No.4912 of 2010 Electronic Machine Tools Limited, Rep. by its Branch Manager, Justin Joseph, ¾, 2nd Floor, Priyan Plaza, 52, Manickam Road, Aminjikarai, Chennai-600 029. .. Appellant/Plaintiff Vs. 1. Power Engineers, 417-B, S.Ramasamy Nagar, Pankaja Mill Road, Ramanathapuram, Coimbatore-641 045. ...1st Respondent/ 1st Defendant 2. Precitek Components (P) Ltd., rep. by its Managing Director, No.4, South Reddy Street, Athipet, Chennai-600 050. ...2nd Respondent/ 2nd Defendant Appeal Suit (First Appeal) against the fair and decretal order dated 9.7.2008 in I.A.No.710 of 2007 in O.S.No.60 of 2007 on the file of the Principal District Court, Tiruvallur. For appellant : Mr.K.Bijai Sundar & Mr.P.Ramesh For respondents: Mr.U.Kasi Pandian for R-1 R2- served Mrs.S.Punithavathi, Scientific Adviser in Memo SR.No.4912 of 2010 JUDGMENT The Appeal Suit (First Appeal) is filed against the fair and decretal order dated 9.7.2008 in I.A.No.710 of 2007 in O.S.No.60 of 2007 on the file of the Principal District Court, Tiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant/plaintiff/Electronic Machine Tools Limited, filed suit in O.S.No.60 of 2007 for a permanent injunction restraining the first respondent/D1 by itself, its servants, agents, distributors, stockiest, dealers or any one claiming through it from in any manner infringing the plaintiff's registered Patent Nos.188585 and 190675 and to direct the first defendant-Power Engineers, to render a true and faithful account of the profits earned by it through the sale of the products sold under the infringed Patent Nos.188585 and 190675 and to direct payment of such profits to the plaintiff for the infringement committed by the first defendant and for costs. 3. The appellant/plaintiff obtained an interim order of appointment of Commissioner and for seizure of the product. After receipt of the summons, D1 filed a petition under Order 7 Rule 11 CPC, read with Section 48 and 104 read with Section 108 of the Patents Act, for rejection of the plaint. 4. The trial Court, after giving opportunity to the appellant/plaintiff and the first respondent/D1, rejected the plaint stating that there is no cause of action against D1 for filing the suit, against which, the plaintiff has come forward with the present First Appeal. 5. At the time of filing the present First Appeal, the appellant/plaintiff has obtained an order of interim injunction. Furthermore, the first respondent/D1, filed an application for appointment of Scientific Adviser to inspect the materials seized so as to find out as to whether there is infringement of the Patent; in pursuance of the same, Mrs.S.Punithavathi, Scientific Adviser/Deputy Controller of Patents and Designs, inspected and verified the product and filed report. 6. Now, the appellant/plaintiff filed the application to scrap the Scientific Adviser's report, stating that she is not the competent person and she is only the Deputy Controller of Patents and Designs, and as per the provisions of Patents Act, the Deputy Controller of Patents and Designs, is not the competent person to inspect the product and file report. Hence, learned counsel for the appellant/plaintiff prayed for allowing the First Appeal. 7. This Court has to decide as to whether the rejection of plaint by the trial Court is correct or not. 8. Admittedly, the application for rejection of plaint is filed under Order 7 Rule 11 CPC. Order 7 Rule 11 CPC reads as follows: "Order 7: Plaint: Rule 11: Rejection of plaint: - The plaint shall be rejected in the following cases:- https://hcservices.ecourts.gov.in/hcservices/ (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Madras High Court Amendment: For clause (c), the following clause shall be substituted, namely:- "Where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court." 9. Now, this Court has to decide as to whether the cause of action has been disclosed by the appellant/plaintiff. 10. Learned counsel appearing for the appellant/plaintiff culled out the portion of the plaint in paragraphs 16, 17, 18 and 20 and stated that the cause of action against both the defendants has been mentioned in the abovesaid paragraphs. He further submitted and relied upon the judgment of this Court in Appeal Suit No.143 of 2009, dated 28.10.2009 filed by the very same plaintiff against the defendants therein, namely, one Powermag Control Systems Pvt. Ltd. (D1 therein) and the present second respondent/D2, wherein, on the basis of the application filed by D1 therein, the plaint was rejected, against which, the plaintiff-Electronics Machine Tools Limited, preferred the said Appeal Suit, in which, this Court held that the averments in paragraphs 16 and 17 therein, disclose a cause of action which gives rise to a triable issue. The said First Appeal (A.S.No.143 of 2009) was accordingly allowed. Learned counsel for the appellant/plaintiff further submitted that the said judgment of this Court in A.S.No.143 of 2009, dated 28.10.2009 is squarely https://hcservices.ecourts.gov.in/hcservices/ applicable to the facts of the present case and the said paragraphs 16 and 17 are one and the same in both the suits, i.e. the present suit O.S.No.60 of 2007 and that suit in O.S.No.61 of 2007. Therefore, learned counsel prayed for allowing the present First Appeal. 11. Learned counsel for the first respondent/D1 submitted that in the plaint pleading itself, there is no cause of action against D1 and the cause of action is only against D2 and hence, the trial Court, in paragraph 8 of the impugned order, came to the conclusion that for lack of cause of action and also on the ground of forum- non-conveniens, the plaint was rejected. Hence, learned counsel for the first respondent/D1 submitted that there is no need to interfere with the findings of the trial Court. 12. Learned counsel appearing for the first respondent/D1 relied upon a decision of the Apex Court reported in 2005 (4) CTC 489 (SC) (Popat and Kotecha Property Vs. State Bank of India Staff Association), in which, it was held by the Supreme Court that the plaint was hit by infirmities provided in Four Clauses of Rule 11 CPC (Order 7) and such power is to be exercised even without intervention of the defendant and the plaintiff therein was entitled to file fresh suit in terms of Order 7 Rule 13 CPC and the rejection of plaint under Order 7 Rule 11 CPC does not preclude the plaintiff from filing fresh suit. 13. In the present case, as already stated, paragraphs 16, 17, 18 and 20 of the plaint specifically mention the cause of action. In such circumstances, there is no infirmity in the facts of the present case and hence, the above citation of the Supreme Court is not applicable to the facts of the present case. 14. Learned counsel appearing for the appellant/plaintiff also relied on the decision of the Supreme Court reported in 1999 (3) SCC 267 (D.Ramachandran Vs. R.V.Janakiraman), wherein, the Apex Court held as follows: "8. .... It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can not probe into the facts on the basis of the controversy raised in the counter. 9. Under Order VI, Rule 16, the Court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice, embarass or delay the fair trial of the https://hcservices.ecourts.gov.in/hcservices/ suit; or (c) which is otherwise an abuse of the process of the Court. We have already pointed out that it is not case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified. (10) On the other hand, Rule 11 o f Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A.No.36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11(a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII, R.11(a) C.P.C. cannot therefore be invoked in this case. ..." 15. Considering the rival submissions made by learned counsel for the appellant/plaintiff and the learned counsel for the first respondent/D1, and though the second respondent was served, it did not choose to appear either in person or through counsel, and also on a perusal of the judgments relied on by both parties, it is now, appropriate on the part of this Court to decide as to whether the plaint in O.S.No.60 of 2007 discloses the cause of action against the defendants while filing the suit. 16. It is an admitted fact that the averments in the plaint are sufficient to prove that where the cause of action is mentioned and averred in the plaint, there is no need to decide as to whether the cause of action averred in the plaint is true and correct. 17. In such circumstances, as per the dictum laid down in the decisions quoted above, I am of the view that the averments in the plaint are sufficient to decide as to whether the cause of action has been mentioned in the plaint or not. 18. It is also appropriate to notice the following decisions: (a) 2005 (13) SCC 687 (Sajjan Sikaria and Others Vs. Shankuntala Devi Mishra and Others): "3. We find that the directions for considering the question relating to Order 7 Rule 11 CPC as Preliminary https://hcservices.ecourts.gov.in/hcservices/ issue is not correct as that would necessitate filing of a Written statement. It is a settled position in law that while dealing with an application under Order 7 Rule 11 CPC, consideration of Written Statement is not a condition precedent and only averments in the plaint have to be considered. Therefore the part of the order is set aside. It will be in the interest of the parties if the whole suit is taken up for disposal as early as practicable. Considering the fact that the suit was filed in 1996, learned counsel for the parties submit that they shall CO-operate in disposal of the suit, and if a request is made to the trial court for disposal of the suit within six months, that would suffice." (b) 2006 (3) SCC 100 (Mayar (H.K.) Ltd and others Vs. Owners & Parties , Vessel M.V. Fortune Express and others): "12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7 Rule 11 of the code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirely taking those averments to be correct. A cause of action is bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the Plaintiff appellants." 19. At this juncture, it is appropriate to consider paragraphs 16, 17, 18 and 20 of the plaint in O.S.No.60 of 2007, which read as follows: "16. The Plaintiff submits that it has granted license to various persons to use it Patents. However, there are few companies in the market who were https://hcservices.ecourts.gov.in/hcservices/ infringing the Plaintiff's Patents. Though the Plaintiff had information about the infringers, it could not take action for want of evidence. The Plaintiff recently came to know that the 1st Defendant has infringed the patent rights granted in favour of the Plaintiff. The 1st Defendant has offered for sale to 2nd Defendant, the Programmable Logic Controller, Digital Class 1 energy meter with C.T, Speed digital meter, Impedance matched Line reactor and other accessories to enable the 2nd Defendant to infringe the Patents granted in favour of the Plaintiff. Further the 1st Defendant has adopted all the novel features of the Plaintiff's claim to its Patent." "17. The Plaintiff submits that the 2nd Defendant has sent an e-mail to the Plaintiff on 28th November 2006 referring to the offer made by the 1st Defendant and sought a clarification on the said subject. The 2nd Defendant for the Plaintiff's reference has forwarded the offer letter, catalogue along with the list of customers send to it by the 1st Defendant. The Plaintiff submits that, the 1st Defendant has infringed its Patents by manufacturing, selling & offering for sale the accessories, which has enabled various industries in the market to infringe the Plaintiff's Patents. The 1st Defendant neither has leave nor license to use the Plaintiff's invention. The 1st Defendant by its unauthorized use of the Plaintiff's right over patents has caused severe loss and injury to the Plaintiff." "18. The Plaintiff submits that the act of infringement committed by the 1st Defendant has caused prejudice and hardship to the Plaintiff. If the 1st Defendant is not restrained by an order of injunction from this Hon'ble Court, the Plaintiff would be deprived off it's right and suffer irreparable loss. The Plaintiff has made out a prima facie case. The balance of convenience is also in favour of the Plaintiff. It is therefore just and necessary that this Hon'ble Court may be pleased to grant a permanent injunction restraining the 1st Defendant from in any manner infringing the Plaintiff's registered Patent Nos.188585 and 190675. No relief is sought against the 2nd Respondent and he is added only as formal party to the suit." "20. The cause of action for the above suit arose at Athipet Village at Ambattur Taluk and Firka within Tiruvallur District and within the jurisdiction of this Hon'ble Court, where the infringement has taken place, when the 1st Defendant has offered to sell without leave and licence from the Plaintiff, the accessories and ideas which enabled the 2nd Defendant to infringe the https://hcservices.ecourts.gov.in/hcservices/ Plaintiff's patents and when the Plaintiff came to know about the infringement of it's Patents and subsequently de die in diem." 20. In paragraph 20 of the plaint, i.e. dealing with cause of action, it was specifically mentioned by the appellant/plaintiff that, "... where the infringement has taken place, when the 1st Defendant has offered to sell without leave and licence from the Plaintiff, the accessories and ideas which enabled the 2nd Defendant to infringe the Plaintiff's patents and when the Plaintiff came to know about the infringement of it's Patents and subsequently de die in diem." 21. As per the decision of this Court in A.S.No.143 of 2009, dated 28.10.2009 (Electronic Machine Tools Limited Vs. Powermag Control Systems Pvt. Ltd. and Precitak Components (P) Ltd.,), in which also, paragraphs 16 and 17 are verbatim to the present suit in O.S.No.60 of 2007, the plaintiff has alleged that D1 has infringed the patent rights granted in favour of the plaintiff by offering for sale the product and process adopted in all the novel features of the plaintiff's claim to its patent, and so, the averments in paragraphs 16 to 18 and 20 in the present plaint, has disclosed the cause of action, which gave rise to a triable issue. 22. In such circumstances, I am of the view that the trial Court has committed error in coming to the conclusion that no cause of action has arisen against D1 and rejected the plaint. Since the findings of the trial Court are erroneous, they are liable to be set aside. 23. Accordingly: (a) The present First Appeal (Appeal Suit) is allowed without costs. (b) The impugned fair and decretal order of the trial Court are set aside. (c) The suit in O.S.No.60 of 2007 is restored to file. (d) The trial Court is directed to proceed with the trial and dispose of the suit as expeditiously as possible. 24. M.P.No.2 of 2009 in A.S.No.1001 of 2008: Since the appellant/plaintiff, at the time of filing the present Appeal, obtained an ex-parte order of injunction, against which, the first respondent/D1 filed the present application for vacating the ex- parte order of injunction and subsequently, the interim order of injunction was made absolute. Since the main First Appeal itself was allowed by this judgment as above, no orders are necessary in the present M.P.No.2 of 2009, which is accordingly closed. 25. M.P.No.1 of 2010: M.P.No.1 of 2010 is filed by the plaintiff to eschew/set aside https://hcservices.ecourts.gov.in/hcservices/ the report dated 21.10.2009 in SP/SA/MP2x32009, filed by Mrs.S.Punithavathy, Deputy Controller of Patents and Designs, Scientific Adviser (appointed as per Court Order), in pursuance of the order dated 27.7.2009 passed by this Court in M.P.No.3 of 2009. 26. Learned counsel appearing for the appellant/plaintiff submitted that during the pendency of the First Appeal, D1 has filed a petition in M.P.No.3 of 2009 for appointment of Scientific Adviser to inquire and report as to whether the product seized from the D1 and the inventions for which Patents 188585 & 190675 granted are one and the same or not. Accordingly, the report has also been filed by the Scientific Adviser. The appellant/plaintiff filed objections to the said report, stating that the Scientific Adviser appointed was not the Scientific Adviser as per Rule 103 of the Patent Rules, and as per Rule 103 of the Patent Rules, the roll of scientific adviser shall be maintained by the Controller and the person so appointed as per Rule 103, alone is the competent person to inspect the properties in question along with the registered patent products of the appellant/plaintiff. 27. In this regard, learned counsel for the appellant/plaintiff relied upon the provisions of Rule 103 of the Patent Rules, and submitted that the Scientific Adviser in the present case, is designated as Deputy Controller of Patents and Designs; he further submitted that before inspecting the properties for comparing the same with the seized products with that of the plaintiff, no notice was served to the plaintiff, and Mrs.Punithavathi, the Scientific Adviser, does not have practical and research experience and she has also not given an opportunity to both sides explaining the respective products before she submitted her report. Only the machine(s) of the defendants was available for inspection. However, in the absence of the machine of the plaintiff, there is nothing for Mrs.Punithavathi to compare and give report. The machine(s) of the defendants was kept in Court custody in the record room and it cannot be easily compared with the machine of the plaintiff without operating the said machine(s). The Patent Controller is not working on the inventions, as the scientific work in the laboratory with equipments are thus done in the electronic laboratory by testing it. So, the appellant/plaintiff wanted to scrap the said report. 28. At this juncture, it is appropriate to consider the provisions of Section 115 of the Patents Act, which deals with the Scientific Adviser and the same reads as follows: "Section 115: Scientific Advisers: (1) In any suit for infringement or in any proceeding before a Court under this Act, the Court may at any time, and whether or not an application has been made by any party for that purpose, appoint an independent scientific adviser, to assist the Court or to inquire and report upon any such question of fact or of opinion (not involving a question https://hcservices.ecourts.gov.in/hcservices/ of interpretation of law) as it may formulate for the purpose. (2) The remuneration of the scientific adviser shall be fixed by the Court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the Court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose." 29. Rule 103 of the Patents Rules in Chapter XIV, reads as follows: "Rule 103: Roll of scientific advisers:--(1) The Controller shall maintain a roll of scientific advisers for the purpose of section 115. The roll shall be updated annually. The roll shall contain the names, addresses, specimen signatures and photographs of scientific advisers, their designations, information regarding their educational qualifications, the disciplines of their specialisation and their technical, practical and research experience. (2) A person shall be qualified to have his name entered in the roll of scientific advisers, if he-- (i) holds a degree in science, engineering, technology or equivalent; (ii) has at least fifteen years' practical or research experience; and (iii) he holds or has held a responsible post in a scientific or technical department of the Central or State Government or in any organisation." 30. This shows that the person shall be qualified to have his name entered in the Roll of Scientific Adviser, if he holds a degree in Science, Engineering, Technology or equivalent and should have atleast 15 years' practical and research experience and he should have