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HIGH COURT OF DELHI
CS(COMM) 302/2022 & CCP(O) 19/2023
SUN PHARMA LABORATORIES LTD. ..... Plaintiff
Through: Mr. Sachin Gupta, Mr. Manan Mandal and Mr. Rohit Pradhan, Advs.
Through: Ms. Rajeshwari H. and Mr. Tahir AJ, Advs.
JUDGMENT
20.03.2023
1. This is a contempt petition under Article 215 of the Constitution of India read with Sections 11 and 12 of the Contempt of Courts Act, 1971, seeking initiation of action against the defendants for having committed contempt of this Court by wilfully and contumaciously disobeying order dated 2nd June 2022 passed by this Court in CS (Comm) 302/2022.
2. In my considered opinion, the nature of the dispute that the petitioner has sought to raise in this contempt petition cannot be decided by a Court exercising contempt jurisdiction, though it may afford the petitioner a right to seek independent legal remedies.
3. Para 8 of the order dated 2nd June 2022, passed by this Court, whereby CS (Comm) 302/2022 was decreed, reads thus: “In view of the above, the present suit is decreed in terms of the relief of permanent injunction as sought in paragraph 38 (a), (b) and (c), against Defendant No. 1. It is however made clear that the Defendant No. 1 would be free to use the mark “PANTRA”. Decree sheet be drawn accordingly.”
4. Prayers (a), (b) and (c) in para 38 of the plaint, in terms of which the plaintiff’s suit was so decreed, read thus:
5. Mr. Sachin Gupta, learned Counsel for the plaintiff submits that he is restricting the scope of this contempt petition to disobedience, by the petitioner, of prayer (b) in para 38 of the suit, which seeks a permanent injunction against the defendants and all others acting on their behalf from directly or indirectly dealing in medicinal preparations (i) under the mark PANTRACID or (ii) in a label, carton or packaging which is a colourable imitation or a substantial reproduction of the PANTOCID label, carton and packaging adopted by the plaintiff.
6. It is nobody’s case that the defendant has, after the passing of the order dated 2nd June 2022, ever dealt with any product under the name PANTRACID. There is, therefore, clearly no disobedience, by the defendant, of the first relief sought in prayer (b) in para 38 of the suit, as granted by this Court vide its order dated 2nd June 2022.
7. Mr. Gupta’s contention is, however, that the new label and carton packaging adopted by the defendant for its product PANTRA- D SR amounts to a colourable imitation or substantial reproduction of the carton, label and carton packing of the plaintiff’s PANTOCID product.
8. Though, I had my doubts as to whether this aspect could be examined in a contempt petition, I have, nonetheless to satisfy myself, perused the two cartons and packagings.
9. Mr. Gupta submits that the Court may also examine the packaging earlier adopted by the defendant for its PANTRACID product, which forms subject matter of challenge in the suit.
10. To my mind, such an examination is completely outside the purview of the jurisdiction of this Court under the Contempt of Courts Act. Section 121 of the Contempt of Courts Act enables the Court to punish a person who has committed contempt of court. “Contempt of court” is defined, in clause (a) of Section 2, as meaning “civil contempt or criminal contempt”. We are, admittedly, not concerned, in the present case, with criminal contempt. The petitioner alleges that the respondents have committed civil contempt. “Civil contempt” is defined, in clause (b) of Section 2, as “(meaning) wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”. The terms of the order passed by the Court are, therefore, sacrosanct, for a Court exercising contempt jurisdiction.
11. Para 8 of the order dated 2nd June 2022, which contains the terms in which the plaintiff’s suit has been decreed, makes no reference to the earlier packaging adopted by the defendant. It decrees the suit in terms of prayers (a), (b) and (c) in para 38 of the plaint. Prayer (b) in para 38 – which is the only prayer which according to Mr. Gupta has been infracted by the respondent – too does not make any reference to the impugned packaging of the defendants’ product. It specifically seeks an injunction against use by the defendant of the PANTRACID trademark or of any label or packaging which is a colourable imitation or a substantial reproduction of the packaging in which the plaintiff’s PANTOCID product is manufactured and sold.
12. Punishment for contempt of court. – (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
12. In exercise of contempt jurisdiction, therefore, the Court cannot, despite the entreaties of Mr. Gupta, allow itself to be swayed by the impugned packaging in the suit. What the Court has to examine is only whether the present packaging adopted by the defendant can be treated as a colourable imitation or a substantial reproduction of the packaging in which the plaintiff packs and sells its PANTOCID product. Comparison of the present packaging of the defendant with the packaging of the defendants, which formed subject matter of challenge in CS (Comm) 302/2022, may be possible in other proceedings, but is certainly, in my view, not permissible in a contempt petition.
13. In para 15 of its report in V. Senthur v. M. Vijayakumar[2], the Supreme Court has thus delineated the scope of jurisdiction of a Court examining a contempt petition:
14. The order dated 2nd June 2022 decreed the plaintiff-petitioner’s suit in terms of prayers (a), (b) and (c) therein. Mr Gupta alleges that, insofar as the suit was decreed in terms of prayer (b), the defendants have contumaciously disobeyed the said order. Prayer (b), to the extent relevant, sought an injunction against the defendants, restraining them from directly or indirectly dealing in medicinal preparations under the impugned PANTRACID, its label and carton 2021 SCC OnLine SC 846 packaging or any other carton packaging as may be colourable imitation or substantial reproduction of the Plaintiff’s PANTOCID, its label and carton packaging amounting to infringement of copyright of the Plaintiff”.
15. Though my jurisdiction, under the Contempt of Courts Act, would not require me to do so, or indeed, justify my so doing, I have, nonetheless, examined the packaging of the plaintiff’s PANTOCID product and the defendants’ PANTRA-D SR product, to satisfy myself as to whether a case for initiating contempt proceedings against the defendant can be said to have been made out.
16. Learned Counsel for the parties are ad idem that the two packagings, which have been handed over across the bar, are the actual packagings of the product. As these two packagings are pivotal to the decision in this contempt petition, they shall be retained as part of the record in this petition and exhibited as Exhibits P[1] and D[1] respectively. Photographs of the packs are provided thus: Petitioner’s PANTOCID Defendant’s Pantra-D SR
17. I have seen the aforesaid two packings, keeping in mind the fact that I am exercising jurisdiction under the Contempt of Courts Act and not exercising jurisdiction either as a Court deciding an original suit or any application under Order XXXIX Rules 1 and 2. Within the limited scope of the jurisdiction of this Court under the Contempt of Courts Act, I regret my inability to agree with Mr. Gupta that the act of the defendant in adopting the new packaging exhibited as Exhibit 2 supra can be said to invite contempt action against them within the parameters of the Contempt of Courts Act. Whether the packaging of the PANTRA-D SR product of the defendant infringes the copyright of the plaintiff in its PANTOCID product requires, in my view, examination through a lens which the contempt court does not have in its treasury. Returning of even a prima facie view in that regard would be squarely outside the pale of my jurisdiction as a contempt court. Suffice it to state that, viewed through the lens of the contempt court, the packaging of the defendant’s PANTRA-D SR product cannot be said to be so clearly imitative of the packaging of the plaintiff’s PANTOCID product as to be regarded, definitively, as a “colourable imitation or substantial reproduction” of the plaintiff’s packaging.
18. Besides, disobedience per se does not amount to contempt. It is only where disobedience is wilful or contumacious that initiation of contempt proceedings would be justified. In exercise of contempt jurisdiction, it would not be possible for me to return a finding that, in adopting the new packaging/trade dress of its PANTRA-D SR product, the defendant acted contumaciously, with a view to disobeying the order passed by this Court. Even for this reason, I do not deem this to be an appropriate case in which to initiate proceedings against the respondents/defendants for having committed contempt of the order dated 2nd June 2022 passed by this Court.
19. The Court has not expressed any prima facie view regarding the merits of the dispute between the parties, or the contentions, on merits, advanced in this application. These aspects have to be relegated to examination if the plaintiff brought an original action for the said purpose.
20. Reserving the rights of the plaintiff in that regard and without expressing any opinion on that aspect, the Court is of the opinion that no case for initiating contempt proceedings against the defendants can be said to be made out.
21. The application misconceived and is accordingly dismissed.
C. HARI SHANKAR, J
MARCH 20, 2023