The judgment establishes the principle that violation of injunction orders and patent infringement can lead to contempt of court under Order XXXIX Rule 2A of the CPC.

JUDGMENT

Amit Bansal, J. (Oral)

I.A.1383/2016 (O-XXXIX R-2A of the CPC) and I.A. 10292/2016 (O-XXXIXR-2A of the CPC)

1. These applications have been filed on behalf of the plaintiffs under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC) to hold the defendants liable for contempt, having violated the injunction order dated 6th January, 2016 passed by this Court.

2. The present suit was filed alleging infringement of three patents of the plaintiffs, being Indian Patents No. 249316, 250050 and 243571. The said three patents cover and claim the commercial product of the plaintiffs "Crizotinib" sold under the trade names "Xalkori." and "Crizalk." in India.

3. Vide order dated 6th January, 2016, ex-parte ad interim injunction was passed in the following terms:

"...Plaintiff no. 2 is the owner of Indian Patent No. 250050...Defendants are acting in concert, inasmuch as are under a common control and management. Plaintiffs have come to know that defendant nos. 1 to 7 in concert of each other are either manufacturing the impugned generic product in India and exporting, selling and/or offering for sale the same in Bangladesh and/or at the very least, surreptitiously and clandestinely importing and diverting for sale into the Indian markets the impugned product, that is, `CRIZO SPL., having the same molecule as that of `Crizotinib' involved in Indian Patent No. 250050. It is further submitted that defendants are in the process of manufacturing and marketing generic `Crizotinib' for sale across the country including within the jurisdiction of this Court. It is contended that this act of defendants amounts to infringement of aforesaid Indian Patent of the plaintiffs.

I have heard learned counsel, perused the plaint and the documents annexed therewith and am of the view that plaintiffs have succeeded in disclosing a prima-facie case for grant of ex-parte injunction in their favour, inasmuch as, balance of convenience is also in their favour. In case, defendants are not restrained, plaintiffs will suffer loss and injury. Accordingly, till further orders, defendants, their directors, employees, officers etc. are restrained from making, using, selling, distributing, advertising, exporting, importing and offering for sale in India, in any manner whatsoever directly or indirectly, the aforesaid drug, being subject matter of the Indian Patent No.250050 of plaintiffs."

4. I.A. 1383/2016 was filed on behalf of the plaintiffs on 25th January, 2016 alleging that the defendants, in concert with each other, have violated the aforesaid order dated 6th January, 2016 and are continuing to manufacture, import, promote and advertise and offer for sell the impugned generic product under the name "CRIZO SPLTM" in the Indian market. Along with the aforesaid application, the plaintiffs filed photographs of the infringing products purchased from the market and which showed that they were manufactured by the defendant no.5 in Bangladesh.

5. Notice in I.A. 1383/2016 was issued on 5th February, 2016. On 2nd May, 2016, counsel entered appearance on behalf of the defendants no.1 to 4, 6 and 7. Replies have been filed on behalf of the defendants no.6 and 7.

6. On 22nd August, 2016 another application under Order XXXIX Rule 2A of CPC, being I.A. 10292/2016, was filed on behalf of the plaintiffs alleging wilful violation of the order dated 6th January, 2016 passed by this Court. In the aforesaid application, it was alleged that the defendants were selling the impugned generic drug under the marks "CIRZO SPLTM" and "CRIZO SPALTM". Along with the application, the plaintiffs also filed an affidavit of a private investigator, Mr. Vincent Jose.

7. Notice in this application was issued on 26th August, 2016. Subsequently, replies to both the applications have been filed on behalf of the defendants no.1 to 3, 6 and 7 and rejoinders thereto have been filed on behalf of the plaintiff. In response to the directions passed by this Court, affidavits were also filed