1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 13TH DAY OF DECEMBER, 2011 THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No.4998 OF 2011 IN C.S.D.No.30620 OF 2011 Jagdale Industries Limited, Represented by its Company Secretary, Mr.Ganapati R Hebbar 782, 15th Cross Road, J.P.Nagar, Bangalore. ..Applicant/Plaintiff VS 1.Halewood Laboratories Pvt.Ltd., 319, Phase-II, GIDC, Vatva Ahmedabad - 382445. 2. Schreiber Dynamix Dairies Ltd., E-94, MIDC, Bhigwan Road, Baramati, Pune District. Maharashtra - 413 133. 3. Ranbaxy Laboratories Ltd., 1208-1215, 12th Floor Devika Tower 6 Nehru Place New Delhi - 110019. 4. Jay Pharma No.79/1, Amman Koil Street, Sowcarpet, Chennai - 79 ..Respondents/Defendants Application praying that this Hon'ble Court be pleased to grant an order of leave to sue against the Respondents/Defendants 1 to 3 who resides outside Jurisdiction of this Hob'ble Court. This Application coming on this day before this court https://hcservices.ecourts.gov.in/hcservices/ 2 for hearing the court made the following order: M/s. Jagdale Industries Limited, a company registered under the Companies Act and having its register office at No.782, 15th Cross, 1st Phase, J.P.Nagar, Bangalore, filed a suit for grant of permanent injunction, restraining defendants, their servants or agents or any one claiming through them from in any manner infringing the plaintiff's patent under No. 247946. 2. A prayer is also made for directing the defendants to render true accounts of the quantity of their product sold including the quantity distributed as free issue, bonus issue and samples, through infringement of the plaintiff's patent and that the defendants be directed to pay to the plaintiff damages, which may be found due and payable. 3. In view of the objection raised by the Office that defendants 1 to 3 are outside territorial jurisdiction of this Court, and the plaintiff has not obtained leave of the Hon'ble Court under Clause 12 of the Letters Patent of the High Court of Madras to institute the above suit, the plaintiff has moved this application for leave to sue the respondents / defendant nos.1 to 3, who reside outside the jurisdiction of this Court. 4. In the affidavit filed in support of the application, it is pleaded that the plaintiff / applicant is the manufacturer and marketer of top quality and https://hcservices.ecourts.gov.in/hcservices/ 3 innovative healthcare products in the sectors of pharmaceuticals, dietary supplements and natural fruit juice based beverages. The applicant / plaintiff has got a patent vide No.247946 for an invention in respect of fruit juice based electrolyte energy drink. The grant of patent has been advertised in the patent journal No.23/2011 dated 10.06.2011. The applicant / plaintiff is exploiting its patent by manufacturing and marketing the fruit juice based electrolyte energy drink under the brand name RS-L, ORS-L and others. 5. The case of the applicant / plaintiff is that the defendants, without license or consent from the applicant, are manufacturing, marketing and selling the product by name 'Juicilyte', containing compositions similar to that of Oral Rehydration Solution, invented by the applicant. Furthermore, the process under which the product 'Juicilyte' is manufactured by the defendants is also similar to applicant's intended process. The defendants, therefore, are said to have committed infringement of applicant's product and process patent. 6. The jurisdiction of this Court, is invoked by pleading that the product 'Juicilyte' is available for sale within jurisdiction of this Court and that the 4th respondent is selling the infringing product within the jurisdiction of this Court. https://hcservices.ecourts.gov.in/hcservices/ 4 7. The respondent nos.1 to 3 are outside the jurisdiction of this Court, therefore, necessity has arisen to seek for leave to sue defendant nos. 1 to 3 of this Court. 8. It is also pleaded that defendants are cheating the unwary customers, thus, an act of the infringement is being committed by respondents, which is required to be stopped. 9. Clause-12 of the Letters Patent empowers this Court to grant leave to sue respondents, in case the cause of action or part of cause of action arises within jurisdiction of this Court. The case of the applicant is that part of cause of action, i.e. sale of product by defendant no.4 falls within the jurisdiction of this Court, therefore, the applicant is entitled to leave to sue. 10. It is pleaded in the suit that product identical to the patented product of the applicant / plaintiff is sold under the brand name 'Juicilyte', which is available for sale in Chennai, within the jurisdiction of this Court and 4th defendant, who is within the jurisdiction of this Court, is selling this product. 11. The cash bill produced from defendant no.1 does not show that defendant no.4 to be the agent or distributor of defendant nos.1 to 3, but is only a General Merchant of retail shop. https://hcservices.ecourts.gov.in/hcservices/ 5 12. Section 104 of the Patent Act stipulates that the suit for infringement of patent can be instituted in any Court inferior to the District Court, having jurisdiction to try the suit. 13. Section 20 of the Civil Procedure Code lays down that suits can be instituted where the defendant resides or cause of action wholly or in part raised. 14. The question for determination in this case prima facie would be whether the sale of product by the General Merchant without any other material, can be said to be cause of action, to sue defendant nos.1, 2 and 3, who are not residing or carrying on business within jurisdiction of this Court. 15. "The answer would be No". 16. The cause of action constitutes bundle of facts, which gives right to maintain a suit against the parties. Defendants are admittedly manufacturing companies, which are not within the jurisdiction of this Court. It cannot be said that some sale by defendant no.4 without his direct association to defendant nos. 1, 2 and 3, can give even part of cause of action to the applicant / plaintiff to maintain the suit in this Court. 17. Learned counsel for the applicant / plaintiff placed reliance on a judgment of the Hon'ble Delhi High Court, in the case of Horlicks Ltd and anr vs. Heinz India (Pvt.) Ltd, 2010 (42) PTC 156 (Del.)(DB), to contend that https://hcservices.ecourts.gov.in/hcservices/ 6 the doctrine of forum conveniens does not apply to civil suits in India, which are covered by the Code of Civil Procedure. There can be no dispute with the proposition of law, but it has also to be seen that when no cause of action arises within the territorial jurisdiction of this Court, then the suit against defendants not residing within the territorial jurisdiction of this Court will not be competent. In case part of cause of action arises, then the leave of Court is required. While granting leave to sue, it is always open to this Court to see where it will be in the interest of justice to maintain the suit in this Court or leave should be declined. The judgment of the Hon'ble Delhi High Court, therefore, has no application. 18. Even otherwise as already observed above, the alleged sale by a General Merchant cannot be said to give part of cause of action to sue defendants in this Court. 19. Learned counsel for the applicant, thereafter placed reliance on the judgment of the Hon'ble Supreme Court in the case of Dhodha House & Patel Field Marshal Industries vs. S.K.Maingi & P.M.Diesel Ltd., 2006 (32) PTC 1 (SC). This judgment also does not advance the case of the applicant / plaintiff, rather it is not disputed that the applicant / plaintiff is not residing within the jurisdiction of this Court nor claims to be carrying on business, as the registered office of the applicant / plaintiff is at Bangalore. Whereas defendant nos.1, 2 and 3 https://hcservices.ecourts.gov.in/hcservices/ 7 are also outside the jurisdiction of this Court, and the defendant no.4 is carrying on business of General Merchant within the territorial jurisdiction and not as sole selling agent. Thus conclusion, which can be drawn that the defendants have no control over this business. It cannot be said that defendants 1, 2 and 3 have any control over business on defendant no.4, who is not agent of defendant nos.1, 2 and 3. 20. Rather in this judgment, the Hon'ble Supreme Court was pleased to lay down that when the plaintiff was not a resident of Delhi, nor he was carrying on business at Delhi, therefore, question as to whether defendant was selling its product in Delhi was not fully irrelevant, as it was possible that goods manufactured by the plaintiff, was available at market at Delhi and sold in Delhi, which would not mean that the plaintiff carries on business in Delhi. 21. Reliance was thereafter placed on the judgment of the Hon'ble Delhi High Court, in the case of Glen Raven Mills Inc vs. Vaspar Concepts Private Ltd & anr, 1995 (15) PTC 392 (Del). 22. This judgment again does not advance the case of the applicant / plaintiff, but rather goes against it. The Hon'ble High Court of Delhi was pleased to hold that to give jurisdiction to the Court, it is necessary to prove that the supply made by the defendant at particular place https://hcservices.ecourts.gov.in/hcservices/ 8 was on a commercial scale and that there should have been direct transaction of sale and purchase between the defendant and distributor or a wholesaler or a retailer and transaction should be of commercial proportion. 23.In the said case, the contract for supply of goods was completed at Bangalore and no part of cause of action has arisen in Delhi. 24.It was further held that one single trap order placed upon the defendant, and supply of goods on the basis of the said order to a person for use in Delhi cannot be said to be a part of cause of action, which would give jurisdiction to the courts at Delhi. In order to give jurisdiction to the court, sale has to be on a commercial basis. 25.If this judgment is applied to the facts of this case, it can safely be said that no cause of action has arisen within jurisdiction of this Court. 26.Reliance was placed by the learned counsel for the applicant / plaintiff on the judgment of this Court in the case of FDC Limited & Ors vs. Sanjeev Khandelwal & Ors, 2007 (35) PTC 436 (Mad.). This judgment is dealing with the condition for grant of interim injunction, therefore, cannot advance the case of the applicant. 27.A strong reliance was placed by the learned counsel for the applicant / plaintiff on the judgment of this Court in the case of Electronic Machine Tools Limited vs. Power https://hcservices.ecourts.gov.in/hcservices/ 9 Engineers and Precitek Components (P) Ltd, 2011 (46) PTC 323 (Mad.), laying down that averments in the plaint are sufficient to decide as to whether cause of action has been disclosed in the plaint or not. This Court in the said case held that cause of action to file the suit arose at Athipet Village at Ambattur Taluk and Firka within Tiruvallur District within the jurisdiction of this Court, where the infringement had taken place, when the 1st defendant had offered to sell without leave and licence from the plaintiff, accessories and ideas, which enabled the 2nd defendant to infringe the plaintiff's patent. 28.This judgment again does not advance the case of the plaintiff, as in that case, defendant no.2 was representing defendant no.1 as its agent and not the general merchant as defendant no.4. 29.Reliance was placed on the judgment of this Court in the case of Wipro Limited & Anr. vs. Oushadha Chandrika Ayurvedic India (P) Limited & others, 2008 (37) PTC 269 (Mad.)(DB). This judgment again does not advance the case of the applicant / plaintiff. Rather in the said case, it was mentioned that the question of plaintiff taking prior leave of this Court under Clause-12 did not arise, as the suit was maintainable being covered under Section 134(2) of the Trade Marks Act, 1999. 30.Finally reliance was placed on the judgment of this Court in the case of Parle Products Private Limited vs. https://hcservices.ecourts.gov.in/hcservices/ 10 Surya Food & Agro Limited, 2009 (40) PTC 638(Mad.)(DB), wherein, this Court was pleased to lay down that for deciding whether the leave granted should be revoked, one is to look into averments in the plaint and the documents filed with it. 31.This case again has no relevance to the point in issue, as in this case, this Court is considering the cause of action, as pleaded in the plaint in coming to the conclusion, that no cause of action has accrued within the territorial jurisdiction of this Court, for granting liberty to leave to sue in this Court. 32.For the reasons stated herein-above, finding no merits in this application, it is ordered to be dismissed. No costs. Sd/-V.K.S.J 13.12.2011 //Certified to be a true copy// Dated this the day of 2012. R.s/07.03.2012 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/