Full Text
IA No.15387/2010 in CS(OS) NO.1993/2010
Date of Decision: 30.11.2010
TENXC WIRELESS INC. & ANR. ……Plaintiffs
Through: Mr. Sandeep Sethi, Sr.Adv. with Mr.J.Saikrishna, Advocate.
Through : Mr.Shailesh K.Kapoor, Adv. for defendant no.3.
Mr. Dushyant Dave, Sr.Adv. with Ms.Gayatri Roy and Mr.Kshitij Sharma, Advs. for the defendant no.1.
Mr.G.Umapathy, Adv. for defendant no.2.
JUDGMENT
1. Whether Reporters of local papers may be allowed to see the judgment? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. (oral) IA No.15387/2010
1. This order shall dispose of an application bearing IA NO. 15387/2010 filed by defendant no.1 under Order 39 Rule 4 CPC for vacation of stay dated 4.10.2010 passed in application bearing IA No.13017/2010, whereby the newly impleaded defendant nos. 2 and 3 were directed to maintain status quo with regard to the installation of “alleged Bi-Sector 2010:DHC:5807 array antennae” as the same is purported to be supplied by defendant no.1.
2. Briefly stated the background in which the present application has been filed is that the plaintiff filed the abovementioned suit for permanent injunction restraining the infringement of its Patent no.IN240893 for invention titled “Asymmetrical Beams for Spectrum Efficiency”, delivery up, rendition of account of profits and damages against a company known as Andrew Comm. Scope having its office in 1100, Comm. Scope Place SE, Hickory, North Carolina, USA. The sum and substance of the allegation contained in the suit was that the plaintiff has patented an invention called “Asymmetrical Beams for Spectrum Efficiency” which is used by a mobile service providers for not only increasing the frequency of spectrum, for wireless communication but also to make use of the said spectrum optimal. It was alleged in the plaint that this invention has been patented on 9.6.2010 and in the month of August, 2010 they learnt that this patent was being infringed by the defendant by providing the services of the infringed patent that is “Asymmetrical Beams for Spectrum Efficiency” technology to some prospective customers in India.
3. The suit came up for hearing for the first time on 27.9.2010 when arguments were addressed by Mr.Kaul, learned senior counsel for the plaintiff, who pressed for grant of ex parte ad interim stay in favour of the plaintiff. Since the Court was not inclined to grant the stay, the matter was adjourned at request to 28.9.2010. On 28.9.2010, the learned senior counsel Mr.N.K.Kaul, again made a brief submission and thereafter sought an adjournment and the matter was adjourned to 4.10.2010. There were two main considerations as to why it was not considered fit to issue an ex parte stay. Firstly, the defendant in the case was having an address in China (actually there were two cases and the case where defendant was having Chinese address only was argued) and it was urged in the second case that is the present case facts are similar. Secondly, there was complete lack of evidence as to how the technology was being transferred or rather pilfered by the defendant into India.
4. By 4.10.2010, the plaintiff filed an affidavit of one Sh.Rajeev Pancholy, who had stated in his affidavit that the defendant no.1 is providing the patented „Bi-Sector array antennae‟, which is infringing the patented invention of the plaintiff to Tata Tele Services under the Model No.HBXX- 3817TB- VTM which has been imported by the defendants and deployed for evaluation with Tata Tele Services. It was also alleged that the said prospective buyer Tata Tele Communication intended to purchase 3000 antennas valued at around US$ 3 million at the current price. On the basis of this affidavit, which was considered in the nature of a prima facie evidence, this Court impleaded Tata Tele Services with their office at Jeevan Bharti Tower 1, 10th Floor, 124, Connaught Circus, New Delhi as the respondent and directed that the plaintiff shall make necessary changes in the plaint impleading them as a party and in the meantime, „status quo‟ shall be maintained by Tata Tele Services regarding installation of alleged Bi-Sector array antennae purported to be supplied by defendant no.1. Provisions of Order 39 Rule 3 CPC were directed to be complied with within three days and the matter was adjourned to 1.11.2010.
5. The defendant no.1 learnt about the said ex parte ad interim order and choose to file an FAO(OS) no. 660/2010 against the order dated 4.10.2010 which was disposed of by the Division Bench vide order dated 15.11.2010 remanding the matter back to the Single Judge directing that provisions of Order 39 CPC and as clarified in Venkatasubbiah Naidu Vs. S.Chellappan & Ors.’s case (2007) SCC 7 695 be strictly complied with. After remand of the matter, an application under Order 39 Rule 4 CPC was filed by the defendant no. 1 on 16.11.2010. The said application was taken up for hearing on 25.11.2010.
6. The learned senior counsel for the parties were heard. Although an application bearing IA 15387/2010 has been filed but neither formal notice has been issued on this application nor any reply has been filed by the plaintiff to this application. Similarly, the defendant no.1 who was originally impleaded as the sole defendant and has been purportedly aggrieved by the order dated 4.10.2010 has till date chosen not to file the written statement or the reply to IA 13017/2010 in which an ex parte ad interim stay has been prayed for by the plaintiff.
7. The point which has been urged by Mr.Dave, learned senior counsel for defendant no.1 is that the ex parte ad interim stay dated 4.10.2010 may be suspended on account of the fact that although the said restraint order has not been passed against the defendant no.1 but in effect it is causing irreparable loss and damage to the interest of the plaintiff. Further, it was contended that the continuation of the aforesaid ex parte ad interim order can be suspended on account of the fact that the plaintiff has made false and misleading statements and suppressed material facts from the Court. A party who has suppressed material facts, fabricated documents and mislead the Court ought not be granted discretionary relief much less a relief by way of an ex parte ad interim order.
8. In this regard, it was contended by the learned senior counsel that two of the points which he would like to refer although there are many more given, in the application are, one that the plaintiff in its plaint has made the following averments:- “(a) In paragraph 20 of the plaint, the plaintiffs have inter alia stated: “It is stated that in the year 2010, the plaintiff no. 1 entered into a licence agreement with the defendant with respect to use of the defendant’s technology called the Remote Electrical Tilt (RET). This proves that the plaintiff no. 1 is an entity which respects the Intellectual Property Rights of the third parties. It is precisely for this reason that the plaintiff no. 1 was shocked to learn in August, 2010, that the defendant herein is engaged in the sale, advertisement and marketing of Bisector Array Antennae, which are identical to the plaintiff no. 1’s split-sector antennae/bisector array antennae” (b) Similarly, in paragraph 31 of the plaint, the plaintiff states that: “the cause of action in the present suit arose in August, 2010, when the plaintiff no.1 came to know of the infringing acts of the defendant. The cause of action continues to arise every day since the defendant continues to import, sell / offer for sale its infringing, products for use in New Delhi, which incorporate the invention of the plaintiff no.1 protected by the Indian patent IN 240893.”
9. It has been contended that the plaintiff has filed the suit on 22.9.2010 while as the Patent Certificate by the Patents office has been given to the plaintiff on 09.6.2010 and the plaintiff has deliberately not produced the specifications in respect of which the product of the plaintiff has been patented. He has drawn the attention of the Court to the Patent Certificate dated 09.6.2010 and contended that the documents annexed to the patent are the records which have been downloaded from the website of the patent office while as the plaintiff ought to have filed the documents which were issued to them this argument further, it was contended by the learned senior counsel that there has been material variation with regard to the averments made in the application for grant of patent and the one which was actually approved by the patent office. This material variation was shown in comparison as para 19 as under:- Claim 19 A sectorized cellular communications network having a plurality of subscribers, comprising: One or more base stations each supporting at least one sector; and a sector antenna associated with each of the at least one sector providing a critical coverage area extending therefrom and overlapping neighbouring sectors in a sector handover zone, at least one said critical coverage area comprising an asymmetrical coverage area A sub-sector Antenna according to claim 10, wherein he sector antenna being replaced has a half power beam width of approximately 105 degree.
10. The second submission which was made was regarding the cause of action clause on which the learned counsel for the defendant no. 1 has stated that the plaintiff has contended that they learnt about the factum of infringement of their patented product only in the month of August, 2010 while as the learned senior counsel drew the attention of the Court to the various documents downloaded by the plaintiff on 21.7.2010 and annexed along with the documents. It is contended on the basis of these documents that though the documents have been downloaded on 21.7.2010 but the plaintiff states that the cause of action has accrued on August, 2010 when he learnt about the violation, which is factually wrong.
11. Another contention of the learned senior counsel for the defendant no. 1 was that the plaintiff had been, of his own saying, dealing with the defendant and it had entered into an agreement for using the defendants‟ technology called as „Remote Electrical Tilt” and thereby the plaintiff company knew that the defendant company and its subsidiary had been using the impugned product for more than two years before filing of the present suit. It is also contended that the subsidiary company which is dealing with the „bi sector antenna‟ is known as “ANDREW LLC & ORS.” and not as “ANDREW COMM.
12. It was urged that the plaintiff knew that the defendant company is a US based company and instead of suing the defendant company in the US, it has chosen to sue the defendant company in India deliberately in order to scuttle its business as it is a rival company. The learned senior counsel has referred to the observations passed by the Apex Court in Dalip Singh Vs. State of UP and Ors. 2010 2 SCC 114, wherein it was observed as under:- “1. For many centuries Indian society cherished two basic values of life i.e. „satya‟ (truth) and „ahimsa‟ (non-violence). Mahavir, Gautam Buddha thee values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute t he stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”
13. In the light of the aforesaid facts, it was contended that the plaintiff has deliberately been guilty of misleading the Court and therefore, the ex parte ad interim order deserves to be vacated.
14. The learned counsel has also placed reliance on case titled S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs & Ors. (1994) 1 SCC 1 in order to urge that the very basis for obtaining the restraint order by the plaintiff was based on concealment of facts, falsehood and misleading the Court and therefore, not only an ex parte ad interim stay which has been granted in favour of the plaintiff deserves to be vacated but the suit itself deserves to be thrown out.
15. The learned senior counsel Mr. Sethi, tried to refute the submission of the learned senior counsel for the defendant no. 1. It was contended by Mr. Sethi, that there was no concealment of material facts, misrepresentation or withholding of information with a view to take undue advantage. It has been contended by him that the defendant as originally shown in the memo of parties is the main company which does its business of wireless communication either in its own name or in the name of its subsidiary companies as is stated by the learned counsel for the defendant no. 1.
16. It is stated that the defendant is trying to make an issue out of nothing by urging as if the plaintiff had deliberately not made the defendant company Andrew LLC as a party as it was to gain something extra which is not the fact.
17. So far as the specifications which are not purported to be annexed along with the certificate of patent by the plaintiff are concerned, it was contended by Mr. Sethi, learned senior counsel for the plaintiff that as a matter of practice, the Indian Patent office apart from the details mentioned in the certificate and design issued by them does not provide the specifications and they have to be applied for by the party concerned, in whose favour the patent is granted. In the instant case, the plaintiff had already applied for the certified copy of the details of the patent and that is the reason why the information was downloaded from the website of the patent office and annexed along with the present suit.
18. It was contended that the defendant cannot and ought not to raise any objection on that score by urging that there is a variation in the application of the plaintiff and the design/formula which has been patented as it was urged that the design and the formula which has actually been patented is much wider in scope than the one which was applied for by the plaintiff.
19. It was also contended by the learned senior counsel for the plaintiff that as a matter of fact, the defendant no. 1 has no locus standi to file the application under Order 39 Rule 4 CPC as there is no restraint order against the defendant no. 1 and it is only against the defendant nos. 2 and 3.
20. I have carefully considered the submission made by the respective senior counsel for the parties and gone through the record including the affidavit purported to be filed by the plaintiff named Sh. Krishnamurthy Kalyanaraman on 26.11.2010.
21. At the outset, it must be stated that so far as the affidavit of Mr.Kalyanaraman is concerned, the same is not being looked into on account of the fact that this affidavit has been filed without the permission of the Court or without there being any application and moreover the affidavit is purported to have plugged only the loophole which has been pointed out by the learned senior counsel for the defendant no. 1. Therefore, the said affidavit is not being looked into while considering the question as to whether the ex parte ad interim order dated 4.10.2010 should continue or be modified during the pendency of the suit.
22. So far as the continuance of the ex parte ad interim order is concerned, it may be pertinent here to refer to Order 39 Rule 4 CPC and its proviso, which reads as under:-