The main legal point established in the judgment is the importance of timely filing of the written statement and the court's discretion to allow the same even after the prescribed period, upon showing good cause and ground for the delay.

SANJIV KHANNA, J.

CM No. 63553/2017

This application is for placing on record an affidavit filed by the respondent.

Allowed subject to all just exceptions.

Contents of the affidavit would be examined when we deal with the appeal filed by the non-applicants on merits.

RFA(OS)(COMM) 9/2017 & CM 23816/2017

1. This order disposes of Regular First Appeal by Sinopharm Weiqida Pharmaceutical Co (WQD) under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 read with section 10 of the Delhi High Court Act, 1966 impugning the decree and order dated 17th May 2017 and the earlier order dated 16th May 2017.

2. The order dated 17th May 2017 passed by the Single Judge closes the right of the appellant, defendant no. 1 in CS (OS) 78/2017, to file written statement and passes decree of the permanent injunction in favour of the Plaintiffs, who are respondents before us, namely DSM Sinochem Pharmaceuticals India Pvt. Ltd and DSM Sionochem Pharmaceuticals Netherlands BV, in terms of paragraph 44(a) of the plaint, which reads as under:

“(a) A decree of permanent injunction restraining the Defendants, by themselves or through their directors, group company, associates, officers, agents, servants, assigns, licensees, distributors and dealers or anyone acting for and on their behalf from using, manufacturing, distributing, selling, offering for sale, or dealing with, directly or indirectly, in Active Pharmaceutical Ingredient, pharmaceutical products, compound or formulation thereof containing Amoxicillin Trihydrate produced by a process. That may amount to infringement of Patent No247301 of the Plaintiff No. l;”

3. In order to appreciate the controversy, we would like to refer to relevant facts in brief.

4. The plaintiffs, had filed the aforesaid Civil Suit, CS (COMM) no. 78/2017 alleging infringement of patent no. 247301 in India titled “Process for Preparing Amoxicilin Trihydrate”. The plaint alleges that the defendant No.1 registered under the laws of Republic of China was the principal company of the 2nd defendant, Sinopharm India Pvt. Ltd., a company incorporated under the Indian Laws. Defendant No.1 was engaged in infringing business of pharmaceutical preparations and drug products. The 2nd defendant was overseeing and administering the business affairs of the 1st defendant and hence they were jointly and severally liable for the infringing activities. The plaint is detailed and has 43 paragraphs excluding the prayer clauses.

5. The plaint had come up for first hearing before the Single Judge on 30th January, 2017. The Single Judge had recorded the contention of the plaintiffs that the 1st defendant was exporting the infringing goods to India which were marketed by the 2nd defendant and then observed that the plaintiffs had not expressly pleaded export of the goods by the 1st defendant to India to the 2nd defendant. It was also observed defendant no. 1, cannot be restrained from manufacturing the product in China, but could be restrained from exporting the infringing goods to India. The plaintiffs would have to sue the 1st defendant at the place where it was situated. The relevant paragraphs of the order dated 30th January,2017 read as under:

“7. The defendant no.l is a Chinese entity which is stated to be infringing the said patent and exporting the infringing goods to India and defendant no.2 Sinopharm India Pvt. Ltd. is pleaded to be marketing the said goods in India. It is however not expressly pleaded that defendant no. l is exporting the goods to India to defendant no.2.

8. I have enquired from the counsel for the plaintiffs as to how this Court would have territorial jurisdiction against the defendant no. l situated in China and who is alleged to be manufacturing through the infringing process.

9. xxxx

10. xxxx

11. Though importing the infringing goods may give a cause of action to the plaintiffs against the defendant no.2 situated at Delhi but as aforesaid it is not so express