1. The defendant No.3 has filed the application dated 12.2.2019 under section 151 of Civil Procedure Code, 1908 (‘CPC’) seeking stay of the suit sine die till the disposal of the revocation petition filed by it and pending before Intellectual Property Appellate Board (`IPAB` for short). Such prayer is made mainly on the premise that before the suit for infringement of patent was filed by the plaintiff, the defendant no.3 filed the revocation petition before the IPAB and there is likelihood that the suit patent would be revoked, however if the suit is not stayed, the defendant No.3 may suffer irreparable loss which could not be compensated in terms of money and will suffer serious prejudice.

2. Learned senior advocate Mr. Saurabh Soparkar appearing with learned advocates Mr. Vinod Khurana, Mr. Rishabh Nieam and Mr. Manan Shah for the defendant No.3 submitted that indisputably, the defendant No.3 filed the revocation petition before the patent infringement suit was filed and in the suit, since the application for interim injunction filed by the plaintiff is rejected, the plaintiff will not be put to any prejudice if the suit does not proceed till decision is taken by IPAB on revocation petition of the defendant no.3. Mr. Soparkar submitted that under Section 64 of the Patent Act, 1970 (`the Act`), when choice/ option is given to the party interested either to file revocation petition before IPAB or to file counterclaim for revocation of patent in the suit for infringement and when before filing of the infringement suit, the defendant no.3 has already exercised its choice/option by filing revocation petition before IPAB, the suit should remain stayed, otherwise the defendant No.3 will be put to great prejudice, as its revocation petition will stand disposed of without adjudication and the very right of the defendant No.3 to get its revocation petition decided on merits will be denied to it. Mr. Soparkar submitted that since the IPAB is having expert members, it is competent to decide on patent issues and therefore it should be first allowed to decide revocation petition when it was filed at prior point of time than the infringement suit. Mr. Soparkar submitted that the counterclaim is considered to be independent suit and as held by Hon’ble Supreme Court in the case of Aloys Wobben and Ors. Vs. Yogesh Mehra and Ors. reported in AIR 2014 SC 2210, if revocation petition is filed first in point of time than the counterclaim in the infringement suit, the counterclaim could not be allowed to be proceeded and in the same logic, the infringement suit later on filed should not be allowed to be proceeded and is required to be stayed till the revocation petition is decided by the IPAB. Mr. Soparkar therefore urged to stay the proceedings of the suit till the revocation petition filed by the defendant No.3 is decided.

3. Learned senior advocate Mr. Neeraj Malhotra appearing with learned advocates Mr. Sandeep Grover, Mr. Dilip Rana, Mr. Pankhuri Bhardwaj and Mr. Kshitij Parashar submitted that in fact, there is no revocation petition of the defendant no.3 registered with the IPAB, as the plaintiff has still not been served with any notice of such petition by the office of IPAB. Mr. Malhotra submitted that just filing of the revocation petition and pendency thereof without registration could not be pressed as a ground to ask for stay of the suit. Mr. Malhotra submitted that otherwise also, it is not permissible to stay the suit under Section 151 of the Code on the principles of law settled that when specific provision is made in CPC for particular contingency or matter, the powers under section 151 of CPC are not to be exercised. Mr. Malhotra submitted that in CPC, since section 10 provides for stay of the suit, the application under section 151 filed by the defendant no.3 for stay of the suit is not maintainable. Mr. Malhotra submitted that the Act provides for right of the patentee to file suit for infringement of the patent and there