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2024 Supreme(Guj) 601
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Galatea Ltd & Anr. – Appellants
Versus
Diyora And Bhanderi Corporation & Ors. – Respondents
R/CIVIL SUITS NO. 2 of 2017 With CIVIL APPLICATION (OJ) (FOR DIRECTION) NO. 1 of 2018 In CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019 In R/CIVIL SUITS NO. 2 of 2017 With CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019, CIVIL APPLICATION (COUNTER CLAIM) NO .1 OF 2022
Decided on : 05-04-2024
Act Referred
CIVIL PROCEDURE CODE : O.12 R.6, O.13 R.1, O.14 R.5, O.26 R.10, O.26 R.10(2), O.26 R.10(a), O.26 R.9, O.39 R.1, O.39 R.2, O.39 R.7, O.8 R.1(a), O.8 R.5, S.100, S.151
Commercial Courts Act : S.15(3), S.16
CONSTITUTION OF INDIA : Art.20(3), Art.21, Art.226, Art.32
CRIMINAL PROCEDURE CODE : S.195(1)(b), S.294, S.311, S.340
EVIDENCE ACT : S.114, S.3, S.34, S.58, S.59, S.62, S.65(b), S.65(b)(1), S.65(b)(2), S.65(b)(2)(a), S.65(b)(3), S.65(b)(5), S.7, S.76, S.77, S.8, S.91, S.92
INDIAN PENAL CODE : S.193, S.196, S.199, S.200, S.205, S.206, S.207, S.208, S.209, S.210, S.211, S.471, S.475, S.476
INFORMATION AND TECHNOLOGY ACT : S.2(t)
PATENT RULES : R.13, R.33
PATENTS ACT : S.10, S.10(4)(c), S.10(5), S.104, S.11(a), S.2(1)(j)(a), S.3(d), S.48, S.64(1)(e), S.64(1)(f)
For the Appellant Mr. Yatin Oza Senior Advocate, Mr. Neeraj Malhotra Senior Advocate, learned advocates Mr. Dilip Rana, Mr. Sandeep Grover, Mr. Ishwer Upneja, Ms. Vara Gaur, Mr. Abhishek Arora and Ms. Nirali Oza
For the Respondent:Mr. Saurabh N. Soparkar Senior Advocate with learned advocates Mr. Tarun Khurana with Mr. Manan Shah
JUDGMENT :
| Sr. No. | Particulars | Paragraph nos. |
| I | Introduction | 1.1 to 1.10 |
| II | Plaint | 2.1 to 2.37 |
| III | Written Statement | 3.1 to 3.8 |
| IV | Oral and Documentary Evidence led by the plaintiffs and the defendants | 4.1 to 4.6 |
| V | Applications filed by the plaintiffs and the defendants | 5.1 to 5.17 |
| VI | Issues | 6.1 to 6.21 |
| VII | Submissions of plaintiffs A) On preliminary objections B) On merits | 7.1 to 7.25 7.26 to 7.57 |
| VIII | Submissions of defendants A) On preliminary objections B) On merits | 8.1 to 8.24 8.25 to 8.145 |
| IX | Counter claim filed by defendant nos. 4 and 5 for revocation of the suit patent | 9.1 to 9.76 |
| X | Reply/submission of the plaintiffs for counter claim – revocation of the suit patent | 10.1 to 10.45 |
| XI | Analysis A) Preliminary objections i) for applying section 58 of the Evidence Act ii) for not complying with section 65B of the Evidence Act, 1872 iii) to apply Order XI as per Commercial Courts Act, 2015 B) on merits C) counter claim |
11.1 to 11.9 11.10 to 11.14
11.15 to 11.19
11.20 to 11.137 11.138 to 11.151 |
| XII | Conclusions A) Issue No.1 B) Issue Nos.2 and 3 (counter claim) | 12.1 to 12.45 12.46 to 12.98 |
| XIII | Order | 1 to 3 |
I - Introduction
1.1 Heard learned Senior Advocate Mr. Yatin Oza, learned Senior Advocate Mr. Neeraj Malhotra and learned advocates Mr. Sandeep Grover, for the plaintiffs and learned Senior Advocate Mr. Saurabh N. Soparkar with learned advocate Mr. Tarun Khurana for the defendants.
1.2 The plaintiffs have filed this suit under the provisions of the Patent Act, 1970 for infringement of Patent No.271425 (here in after referred to as “the suit patent”) by the defendants and the defendants have filed the counter claim for revocation of Suit Patent.
1.3 The suit was originally filed before the District Court, Surat which was registered as Trade Mark Suit No.3/2017 which was transferred to the Commercial Court at Vadodara.
1.4 After the suit was transferred to Commercial Court, Vadodara, notices were issued to the defendants through their respective advocates and were served upon the defendants. Learned advocates for the parties thereafter filed witness lists vide Exhs.71 and 72. Learned advocate for the defendants filed additional witness lists vide Exhs.73 and 75.
1.5 Thereafter affidavits in lieu of examination in chief of the witnesses were filed on behalf of the plaintiffs at Exhs.76 to 84 and defendants filed affidavits in lieu of examination in chief of the witnesses vide Exhs.85 to 97. The District Court sent the affidavits received from both sides to the Commissioner for recording the deposition of the witnesses who filed the affidavits and rest of the witnesses though named for whom no affidavits were submitted, were brought as agreed by both the sides for recording their evidence. The Court Commissioner submitted his report vide Exhs. 102 to 109.
1.6 It appears that in view of the notification dated 08.05.2019, the Court Commissioner at Vadodara was disbanded by the High Court and original record and proceedings of the suit were sent back for further necessary action at the District Court, Vadodara.
1.7 Thereafter pursuant to the counter claim filed by the defendants for revocation of the suit patent, as per the provision of section 104 of the Patent Act, 1970 (For short “the Patent Act”) suit was transferred to this Court and was renumbered as Civil Suit No.2 of 2017. Thereafter this Court passed the orders for recording evidence by the Court Commissioner. The Court Commissioner submitted his reports regarding recording evidence from Exhs.110 to 115.
1.8 This Court (Coram : Hon’ble Mr. Justice R.M. Chhaya, As His Lordship was then) by order dated 26.03.2018 decided the Exh.5 application for temporary injunction filed by the plaintiffs by directing the defendants to maintain separate account for sale of any machine manufactured and/or sold by any of the defendants till the f
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