Madras High Court M/S.Tvs Motor Company Limited vs M/S.Bajaj Auto Limited on 21 September, 2011 DATED : 21.09.2011 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU A.No.2258 and 2691 of 2011 in C.S.No.979 of 2007 and C.S.No.1111 of 2007 M/s.TVS Motor Company Limited Jayalakshmi Estates, No.29, Haddows Road, Chennai 600 006. ... Applicant/Plaintiff Vs M/s.Bajaj Auto Limited Akurdi, Pune411 035 Maharashtra. ... Respondent/Defendant These Applications filed under Order XIV Rule 8 of O.S. Rules r/w. Order XVIII, Rule 3 of C.P.C. and Order XIV Rule 8 of O.S. Rules r/w.Section 151 C.P.C. respectively. For Applicant : Mr.Vaidhyanathan, Senior Counsel and Mr.P.S.Raman, Senior counsel for M/s.T.K.Baskar For Defendant : Mr.T.V.Ramanujan, Senior Counsel and Mrs.Nalini Chidambaram for M/s.A.A.Mohan COMMON ORDER In view of the interconnectivity of the facts and circumstances of the cases, both the applications are taken up together and disposed of by a common order. 2. For the sake of convenience, the ranks of the parties are referred to in this judgment as plaintiff and defendant as stated in C.S.No.979 of 2009. 3. The following are the allegations contained in the affidavit of the applicant/plaintiff in A.No.2258 of 2011 filed along with petition under Order XVIII, Rule 3 C.P.C. Order XIV Rule 8 of OS Rules: 3(1). The applicant has filed a suit in O.S.No.979 of 2007 for declaration, for permanent injunction, for directing the defendant to compensate the plaintiff a sum of rupees one crore or such other amount. The respondent/defendant filed a suit in C.S.No.1111 of 2007 praying for permanent injunction and preliminary decree directing the defendants to render accounts of profits made by sale, direction to pay a sum of Rs.10,50,000/ as damages, for delivery of the infringing copies and articles for destruction and for cost. On 16.02.2008 an order of temporary injunction was granted in favour of the respondent restraining the applicant from in any manner infringing the respondent's patent No.195904 and/or from using the technology etc. The applicant preferred appeals in O.S.A.Nos.91 and 92 of 2008 before the Division Bench and the same were allowed on 18.05.2009. The respondent filed Special Leave Petition before the Hon'ble Supreme Court in C.A.No.6309 of 2009 which was disposed of on 16.09.2009 directing the parties to commence the trial and requesting this Court to hear the suit and dispose it off expeditiously within time frame fixed by the Apex Court. The applicant and the respondent have filed their respective written statements and issues have also been framed in both the suits. They have also filed their affidavit of documents. 3(2). On 10.03.2010, this Court passed an order directing this respondent to start letting in evidence. The respondent preferred O.S.A.No.132 and 133 of 2010 and the same were disposed of on 04.10.2010 by the Division Bench setting aside the order of the learned Single Judge, directing the applicant herein to let in evidence at the first instance. 3(3). The issues involved in the suit are groundless threat issued by the respondent on the basis of the alleged infringement of its patent by the applicant's products. During the course of trial, it is open to the respondent to let in evidence in support of its contention of infringement of its patent. In such event, the applicant herein is entitled to raise a plea that the patent granted in favour of the respondent is invalid. By way of abundant caution, the applicant files this present application reserving its rights to let in evidence in answer to the respondent's evidence alleging infringement. 3(4). So far, there is no order by this Court for joint trial to avoid hypertechnical objections being raised at a later stage, this petition is filed under Order XVIII, Rule 3 of C.P.C. permits the party to reserve its right to produce evidence in answer to the evidence produced by the other party. No prejudice will be caused to the respondent, if the present application is ordered as prayed for. Hence, it is prayed that this Hon'ble Court may be pleased to permit the applicant's/plaintiff's pleading to reserve its right to let in evidence on the issue of the invalidity of the respondent's/defendant's, their patent in answer to the respondent/defendant letting in evidence regarding validity and infringement of its patent in C.S.No.979 of 2007. 4. The following are the allegations contained in the counter affidavit filed by the respondent/defendant: 4(1). The application is wholly misplaced and misconceived which is not maintainable. It is a dilatory tactics adopted by the plaintiff in delaying the trial of the suit especially when there is no injunction operating against it. The Hon'ble Supreme Court ha