Back
High Court of Judicature at Bombay
MOHIT S. SHAH & RANJIT MORE
CTR Manufacturing Industries Limited
Versus
Sergi Transformer Explosion Prevention) Technologies Limited & Others
APPEAL (LODGING) NOS. 40 AND 70 OF 2012 IN NOTICE OF MOTION NO. OF 2011 IN SUIT (L) NO.3026 OF 2011
Decided On : 16-03-2012
Where respondents, violated interim order of Court and filed misleading affidavit therefore case for filing complaint under Section 340, Cr PC read with Section 195(1)(b) for filing misleading affidavit, made out. - The Managing Director of respondent No. 1 is respondent No. 2 in the present proceeding. His reply affidavit dated 30th April, 2012 assumes importance. Apart from pointing out his heavy pre-occupation, programme to leave India for his country for Christmas celebration, his affidavit also discloses that after receipt of purchase order from DTL, he had issued necessary oral orders to various departments to meet the purchase order requirements but to stop short of "selling the product in dispute to DTL. He has expressly mentioned that he was aware of legal opinion given to Sergi by its lawyer in context of order of the trial Court dated 15th February, 2010. In this proceedings, Court is not concerned with the said legal opinion. This affidavit, therefore, shows knowledge of the fact to respondents 1 and 2 and all concerned that product could not have been sold and all other steps were permitted. The said officer, thereafter in paragraph 8.7 of that affidavit shows knowledge of order dated 9th December, 2012 preventing Sergi from taking any step whatsoever in relation to DTL purchase orders. This knowledge is acquired on 14th December, 2010. Seriousness and drastic nature of change brought about is well understood and hence, in affidavit, grievance is made by him about obtaining such an order ex parte. He, then, immediately instructed the Legal Manager to rush to Mumbai and co-ordinate with the Sergi lawyer to have that order vacated. Thus the urgent need felt by him to get that order vacated has also come on record. In the light of the earlier "oral orders" the change brought about in the situation by order dated 9th December, 2010 has struck respondent No. 1-Company and respondent No. 2 and it made efforts to get that order vacated. However, the affidavit does not show any steps taken by either respondent No. 1 or respondent No. 2 to stop violation of latter order dated 9th December, 2010 after 14th December, 2010. It is important to note that Shri Chavan is presently not in employment of respondent No. 1. Its Legal Manager, who is respondent No. 3 in the present proceeding is also not in employment. The affidavit filed by said Antoine Magnier, therefore, shows only order directions issued by him on earlier occasion to see that the Court orders are not breached by actually selling the product to DTL. His affidavit discloses steps taken by him to get later order dated 9.12.2010 vacated as it altered the situation to the prejudice of respondent, but then he has not taken any steps to prohibit its breach for violation. Whether this omission is accidental or deliberated is an issue which cannot be resolved in this proceeding. The law on point is well-settled and the Court can only express prima facie opinion. Its conclusion is not binding when actually trial Court is competent Criminal Court. This defence of oral order to stop "short of selling" and then the alleged later omission to issue instructions to other not to take any steps in the light of Court order dated 9th December, 2010 itself appears to be doubtful. In any case, it may be the defence in criminal trial and burden to substantial it is upon respondent Nos. 1 and 2.
The applicant has specifically come up with the contention that drawings were submitted only once. The respondents have not produced on record any communication with which drawings were submitted to M/s. DTL on 24th December, 2010, if the drawings were already submitted, on 12th January, 2011 the respondents would have informed M/s. DTL that drawing were already submitted on 24th December, 2010. They could have also informed about the restraining orders, in ignorance of which drawings were "inadvertently" submitted and its dilution or vacation by the High Court on 11th January, 2011. Such a disclosure would have been more desirable to show the bona fides of respondents in the matter. There is no attempt to point out to this Court the fact that submission of drawing in violation of interim directions was communicated by the respondents or by Shri Chavan to M/s. DTL.
If on 12th January, 2012 Shri Chavan resubmitted the drawings, he ought to have or could have immediately informed his seniors/superiors about the first submission thereof already on 24th December, 2010. Thus the circumstances in which drawings were inadvertently submitted on 24th December, 2010 would have then come on record in normal course of events. In that event, the respondents could have also pointed out that inadvertent submission to the Court by filing proper affidavit even though appeal from order was disposed of on 11th January, 2011. There is no such effort by the respondents. Though this is not a conclusive application of mind, in any way, at this stage it deserves to be given due importance.
It is not necessary, at this stage, to resolve this factual dispute and issue. Now the fact of submission of drawings on 24th December, 2010 is accepted. The respondents have not pointed out that after the said resubmission they have informed M/s. DTL that earlier submission on drawings on 24th December, 2010 was contrary to Court orders. In injunction jurisdiction, when a party applies for grant of temporary injunction or for its vacation, its highhanded or disrespectful conduct is definitely relevant. The fact that drawings were already submitted on 24th December, 2010 ought to have been disclosed to the Court. The Court in that even would have applied its mind appropriately and taken a suitable view of the matter. The fact relevant in the exercise of that jurisdiction has not been pointed out to the Court. Actual impact the said fact may have on the findings recorded in the judgment dated 11th January, 2011 is again not very important. The suppression of relevant facts and therefore denial to other side to point out its impact or then inability of the Court to consider its effect is the only relevant aspect in this jurisdiction and at this juncture. The present respondents continued to question the modified order dated 9.12.2010 by urging that denial of an opportunity to it to take even preliminary steps was unjustified. Conclusion that a fact relevant for administration of justice was held back and the Court was prohibited from looking into a relevant event is, therefore, the most significant facet in the present matter. The contention of Senior Advocate Shri Rajadhyaksha that original plaintiff or present applicant who seeks the prosecution is trade rival of respondents or has no stake in contract with M/s. DTL is totally irrelevant.
A case for filing complaint under Section 340 of Cr PC read with Section 195(1)(b) for filing misleading affidavit and for not disclosing true and correct facts to the Court is made out. Respondent No. 2 as also Mr. Chavan have independently filed their affidavits in this proceeding unequivocally stating that nothing material relevant has been concealed. Same discloser is also made by respondent No. 3 in affidavit filed for respondent 1-Company in Appeal from Order No. 102/2011 which has been decided on 11th January, 2011. It is expedient and the events noted above also indicate after this preliminary inquiry, a need for investigation into alleged offences under Section 195(1)(b) of Cr PC to see that facts vital in exercise of any jurisdiction are not suppressed by parties. Thus by such suppression as also by declaring that nothing material has been concealed from the Court, prima facie, an offence under Section 193 read with Section 191 or Section 209 of Indian Penal Code, 1860 appears to have been committed by the respondents which deserves to be inquired into by the competent Judicial Magistrate.
Ranjit More, J.
Heard learned counsel appearing for the respective parties. Since the question involved in these appeals is short, the respective counsel agree for disposal of these appeals finally at the admission stage. The parties to the above appeals are one and the same and the issue involved is also common, therefore, both the above appeals are being disposed by this common order.
2. The above appeals take exception to the orders passed by the learned Single Judge on 17th January, 2012 and 15th November, 2011, respectively in the above notice of motion in Suit (Lodging) No. 3026 of 2011. The brief facts giving rise to the above appeals are as follows:-
The appellant in both the appeals is the original plaintiff and respondents are the original defendants. (For the sake of convenience, the parties are referred to by their original nomenclature as mentioned in the plaint.) The plaintiff and defendant No.1 are both engaged in manufacture of fire systems. The plaintiff and defendant No.1 both held patents in respect of the system and/or features thereof. Defendant No.1 was granted a patent in respect of fire systems under the Patents Act, 1970 (hereinafter referred to as “ the Patents Act”) on 14th December, 2002. The plaintiff filed an application for registration of its patent in respect of manufacture of fire systems on 16th November, 2005, and the patent was granted to the plaintiff under the provisions of Section 43(1) of the Patents Act on 3rd August, 2006. Defendant No.2 is a agent/distributor of defendant No.1’s product – SERGI 3000 across various locations in India including Thane, and defendant No.3 is a company engaged in manufacturing electrical transformers is the purchaser and also suppliers of the fire systems manufactured by the plaintiff or defendant No.1.
3. The plaintiff claims that its patent and defendant No.1’s patent is different. The plaintiff claims that their patent is a method for prevention, protection and detection against explosion and fire in an electrical transformer. According to the plaintiff, so far as the patent of defendant No.1 is concerned, same is a mechanical device and prone to frequent mal-function and based on technology which may be regarded as relatively obsolete in comparison to the plaintiff’s patent. The plaintiff further claims that defendant No.1 mindful of the success and superiority of the plaintiff’s product and/or patent and in an attempt to unfairly stop the plaintiff’s business, instituted a patent infringement suit before Kolkata High Court against the plaintiff. An interim application seeking injunction against the plaintiff and restraining it from selling its products was also filed. However, no injunction as prayed by defendant No.1 was granted by Kolkata High Court. Defendant No.1 failing to commercially exploit the Indian market for selling its fire systems, started copying the plaintiff’s patent and started manufacturing “SERGI 3000” based upon the patent of the plaintiff. When the plaintiff became aware of the infringing acts of defendant No.1, the plaintiff on 11th February, 2010, filed a patent infringement suit against defendant No.1 in District Court at Thane for various reliefs. The plaintiff also filed an application for interim injunction at Exhibit “5” in terms of the injunction claimed in the above suit.
4. As defendant No.1 was intending to participate in the auction conducted by Delhi Transco Ltd. (hereinafter referred to as “DTL”) by proposing to sell the infringing product, the plaintiff initially sought ex-parte injunction against defendant No.1 restraining it from participating in the tender notice issued by DTL with regards to the impugned product. A purshis came to be filed by the plaintiff in that regard at Exhibit “9” restricting its case and relief to restrain the defendants from selling their products to DTL for the purpose of ad-interim ex-parte relief. The District Cut by its order dated 15th February, 2010, prohibited defendan
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
