JAYANT NATH, J.

IA No. 2037/2018

1. This application is filed under Order 6 Rule 17 CPC to bring on record the change in the title of the suit patent.

2. It has been pleaded that the plaintiff-MSD OSS BV merged into Organon Bio-Science Nederland BV and pursuant to that merger the patentee of the suit patent became Organon BioScience Nederland BV. Subsequently, Organon Bio-Science Nederland BV merged into Merck Sharp & Dohme BV who has now become the patentee of the suit patent and hence, the present application to substitute the original plaintiff with the amalgamated Merck Sharp & Dohme BV.

3. The present suit has been filed seeking a decree of permanent injunction to restrain the defendant from using, selling, distributing, etc. any product that infringes the plaintiff’s Indian Patent No.224609. Other connected reliefs are also sought.

4. This court on 12.04.2018 had heard arguments on this application and had noted the submission of the learned senior counsel for the plaintiff that though the application is labelled as under Order 6 Rule 17 CPC but in fact what is being sought is only the relief under Order 22 Rule 10 CPC, namely, substitution of the plaintiff with Merck Sharp & Dohme BV in which the plaintiff has merged/amalgamated. It is also stated that as the relief under Order 22 Rule 10 CPC is only being sought in the present application there would be no need to take on record the amended plaint which has been filed along with the present application in view of the fact that the said amended plaint contains averments other than pertaining to substitution of the plaintiff. This court had directed the plaintiff to produce in court documents forming basis of the claim for substitution.

5. The documents have now been produced.

6. Learned senior counsel for the plaintiff has submitted that the necessary changes have also been made by the Patent Office and in the records of the Patent Office, necessary substitution has been made substituting the name of the patentee as Merck Sharp & Dohme BV. It has also been pleaded that the delay in moving the present application was only inadvertence and nothing more.

7. Learned senior counsel for the defendants has strongly opposed the present application. He has firstly submitted that this court has to first see the documents relied upon by the plaintiff to claim merger and the fact that the rights have been taken over by the new entity i.e. Merck Sharp & Dohme BV. He further submits that there is a delay of five years in moving the present application and there is no plausible explanation given as to why this delay has been cause. He relies upon the judgment of the Division Bench of this court in Yapi Kredi Bank (Deutschland)AG vs. Ashok K.Chauhan & Ors., ILR (2013) II Delhi 841 to submit that while dealing with an application under Order 22 Rule 10 CPC, the court would have to necessarily embark on an inquiry albeit a prima facie or rudimentary one to decide if indeed the applicant concerned is the successor entitled to the carriage of the legal proceedings. He also relies upon the judgment of the Karnataka High Court in Akka Bai & Anr. Vs. Gowrawwa, AIR 1990 Kant. 278 and the judgment of the Madhya Pradesh High Court in Devisahai Premraj Mahajan vs. Govindrao Balwantrao & Ors., AIR 1965 MP 275 to contend that where there is a delay, the applicant would have to explain the reasons why this delay is caused.

8. The Division Bench of this court in Yapi Kredi Bank (Deutschland)AG vs. Ashok K.Chauhan & Ors.(supra) has held as follows:-

“23. In the opinion of this Court, the law declared by the Supreme Court regarding the legal effect of a merger, or scheme of amalgamation, upon pending proceedings, in Bhagwan Das Chopra (supra) that "subject to such terms it becomes liable to be impleaded or becomes entitled to be impleaded in the place of or in addition to the transferor company or corporation in any action, suit or proceeding, filed against the transferor company or corporation by a th