ACCURE LABS PVT. LTD. v. SUGEN INC.

1. There aretwolimbs oftheimpugned order dated August 16,2016.

2. The first part decreeing the suit has not been challenged. The second partdisposing oflA No.1382/2016is under challenge.

3. It is settled law that no^ appeal lies against an order dismissing a review petition and thus learned counsel for the appellant gives up challenge to the order dated September 15 2016 by which RP No.399/2016 and RP No.400/2016 filed by the two appellants:impleaded as defendants No.2 and 3 in the suit have been dismissed.

4. As regards the order dated August 16, 2016, lA No.1382/2016 invoking order 39 Rule 2A ofthe Code ofCivil Procedure has been decided by the learned Single Judge imposing costs in sum offlO lacs each on the two appellants and since the plaintiffs said that the costs imposed be paid to a charitable institution,the direction is to pay the amount to Cancer Institute in Chennai.

5. The violation alleged is to the ex^parte ad-interim order dated September 04, 2015 restraining the defendants in the suit from manufacturing, selling, distributing, exporting, offering for sale and from advertising pharmaceutical preparations infringing plaintiffs' patent No.209251. As per the plaintiffs it has a patent in the suit patent i.e. Sunitinib. After the ex-parte ad-interim injunction was granted and order served, lA No.1382/2016 was filed by the plaintiffs alleging that on their website and in the market not only were offending goods being offered for FAO(OS)(COMM.)88/2016&89/2016 Page2of[4] 2016:DHC:8582-DB sale but even manufacturing activity was on. The said application was listed in Court on February 05,2016 and notice returnable for February 09, 2016 was issued. The appellants were serveci for said and we find that till the impugned order dated August 16, 2016 was passed no reply was filed. The learned Single Judge has therefpre treated the averments made in the application as admitted on accountofthe same not being traversed.

6. We agree with the view taken by the learned Single Judge keeping in view the factthat along with the application the plaintiffs took out computer printouts from the website of the appellants showing the continuous information to the public that the appellants offer for sale the offending product. Qua the argument that the printouts do not show the date when they were obtained, we note that during photocopying the date when the printouts were obtained got inadvertently omitted. The date ofthe computer printout is January 25,2016.

7. Conceding to said fact, learned counsel for the appellants states that the website shows that the offending product was stated to be 'under development'and'availablesoon

8. Whilst this may be true, but the cat is out ofthe bag inasmuch as we find that the offending product is available for sale in the market and the appellants have sold the same to stockists, distributors and chemists. When confronted with the proofthereof,being the packaging material under which the offending product is being sold,learned counsel for the appellants seeks to urge that from the date of manufacture: '09:2015', it is apparent that the product was sold in the market prior to the injunction order being issued and thus urges thatthere is no contempt committed.

9. Now,people who cheat use all kinds ofdevices and adopt all kinds of strategies. Faced with the packaging material learned counsel for the FAO(OS)(COMM.)88/2016&89/2016 Page3of[4] appellants seeks to urge that, from the date of manufacture, it is apparent that the goods were manufactured before the injunction order. But when confronted with the website which shows that on January 25,2016,a date after the injunction order, the appellants continued to offer for sale the infringing product, learned counsel seeks to urge that the website shows that the product is under manufacture and was offered to be sold in the future. The two arguments cannot stand together. It is obvious that the website has been so designed to shield an illegal activity. The sale ofthe product in the market is proof that the display on the website that the product was under development and would be available soon is to hide the truth.

10. It is a case ofgross contempt ofthe order passed by the Courtand the plaintiffs would be entitled to recompense under Order 39 Rule 2A ofthe Code ofCivil Procedure.

11. We find no infirmity in the impugned order and thus dismissed the two appeals in limine but withoutany order asto costs. CM No.37105/2016 in FAOfOSyCQMM.l 88/2016 CM No.37107/2016 in FAOlOSyCOMM.I 89/2016 Dismissed as infructuous. PRADEEP^A^^^JOG,J. OCTOBER 04,2016 skb RATIBHA cm-, Cnn-~i8P-Qi9- ^ FAO(OS)(COMM.)88/2016&89/2016 / Page4of[4] $~DB-2&3. + FAO(OS)(COMM)88/2016 ACCURE LABS PVT.LTD. Appellant Through: Mr. Utkarsh,Adv.

VERSUS

SUGLN INC.& ORS Respondents Through: None. AND FAO(OS)(COMM)89/2016 SP ACCURL LABS PVT.LTD. Appellant Through: Mr. Utkarsh,Adv.

VERSUS

SUGLN INC.& ORS Respondents Through: None. CORAM: HON'BLE MR.JUSTICE RAJIV SAHAI ENDLAW ORDER % 22.09.2017 CM No.35198/2017 in R.P. No.188/2017 in FAO(OSRCOMM)88/2016& CM No.35199/2017 in R.P. No.191/2017 in FAOIOSRCOMMl 89/2016 (both for correction!