The main legal point established in the judgment is that a fresh cause of action does not justify filing a new suit when the matter is part-heard before another court. The judgment also highlighted the principle that a dismissal of a suit on technical grounds does not bar a fresh suit and that a trademark owner cannot misuse the court's process by filing multiple suits in different forums until obtaining a favorable outcome.

ORDER

Prathiba M. Singh, J. (Oral). - This hearing has been done through hybrid mode.

2. The present suit is one seeking permanent injunction restraining the Defendant from infringement of trademark, passing off, unfair competition, rendition of accounts of profits/damages, delivery up and other reliefs. The Plaintiff's case is that the defendant is infringing upon its registered trademark 'LETROZ' by using the mark 'LETERO' in respect of its medicinal and pharmaceutical preparations.

3. Before the matter could be heard on merits, a query was put to the ld. counsel for the Plaintiff as to how the present suit would be maintainable in as much as for this very trademark, an earlier suit being CS (Comm.) No. 300 of 2019 titled Sun Pharma Laboratories Ltd. v. Hetero Healthcare Ltd. & Anr., has already been filed by the Plaintiff against the same very Defendants before the ld. ADJ-02, North West District, Rohini Courts, New Delhi (hereinafter "Trial Court"), and the same is still pending.

4. Mr. Sachin Gupta, ld. counsel for the Plaintiff, submits that though the said suit being CS (Comm.) No. 300 of 2019 was filed in 2017, more than 5 years have passed and no orders have been passed in the interim injunction application in the said suit. He further submits that the judicial officers presiding over the Trial Court were being changed from time to time. He submits that orders on the injunction application were once reserved on 20th October, 2018, but the same was released vide order dated 7th January, 2019, upon the change of the Judicial Officer. The Plaintiff is also stated to have withdrawn its injunction application before the Trial Court and filed a fresh application, once, in 2019 due to the Defendant's objection that the prayer did not mention the word "passing off'.

5. Today, Mr. Gupta, ld. Counsel, submits that every sale by the Defendants constitutes a fresh cause of action and thus, despite the pendency of the first suit before the ld. ADJ, the present suit before this Court would also be maintainable in view of the judgment of the Supreme Court in Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Company, (1997) 1 SCC 99. Ld. Counsel refers to the cause of action in both suits and submits that since no interim injunction has been granted in the earlier suit, the continuous use of the infringing mark by the Defendants, constitutes a fresh cause of action for the Plaintiff.

6. On the other hand, Mr. Ajay Sahni, ld. counsel appearing for the Defendants, submits that the judgment of the Supreme Court in Bengal Waterproof (supra) cannot be read in the manner it has been read by the Plaintiff. The cause of action in both suits is identical. The earlier suit is in fact part-heard before the District Court in the fresh injunction application, as recorded in the order dated 30th March, 2021, and filing of the present suit in another Court is a gross abuse of process. He relies upon the following decisions:

Prapti Fashions Private Limited and Ors. v. Manoj Kumar Gupta, 2013 (55) PTC 234 (Cal).

Hari Ram v. Lichmaniya & Ors., AIR 2003 Raj. 319.

Ranbir Singh v. Dalbir Singh & Ors., CS(OS) 802/2002, decision dated 19th December, 2008 (Delhi High Court).

Vijay Kumar Gupta v. State of West Bengal [SLP (Crl.) 10951 of 2019, decided on 22nd March, 2022]

7. Heard. The Court has perused the two plaints and at the outset, notes the following:

(i) In the first suit pending before the Commercial Court, the Plaintiff is Sun Pharma Laboratories Limited and the Defendants are Hetero Healthcare Limited and Hetero Labs Limited. The parties in the second suit before this Court are identical, (ii) The cause of action in the first suit reads as under:

"25. The cause of action for institution of the present suit arose on 30th November, 2017, when the Plaintiff's representative came across the Defendant's medicine under the impugned mark selling at a drug store falling within the jurisdiction of this Hon'ble Court. The said cause of action is a continuous one