Neutral Citation Number : 2023:DHC:3337

CS(COMM) 101/2022

Page 1 of 44

$~17(Original)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 12^th May 2023

Pronounced on: 15^th May 2023

+

CS(COMM) 101/2022

ASTRAZENECA AB & ANR.

..... Plaintiffs

Through:

Mr. Pravin Anand, Ms. Vaishali

Mittal and Mr. Siddhant Chamola, Advs.

versus

WESTCOAST PHARMACEUTICAL WORKS LIMITED

..... Defendant

Through:

Mr. Vikash Khera and Mr.Ved

Prakash, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T

%

15.05.2023

I.A.21995/2022 (under Order VII Rule 11 of the CPC)

1.

This is an application preferred by the defendant Westcoast

Pharmaceutical Works Limited under Order VII Rule 11 of the Code

of Civil Procedure, 1908 (CPC), seeking rejection of CS (COMM)

101/2022, instituted by the plaintiff Astrazeneca AB.

2.

I have heard Mr. Vikas Khera, learned Counsel for the

defendant-applicant and Mr. Pravin Anand, learned Counsel for the

plaintiff-non applicant, at length.

3.

Mr. Khera predicates his case, in this application, on three

grounds.

Digitally Signed By:SUNIL

SINGH NEGI

Signing Date:15.05.2023

19:59:40

Signature Not Verified

Neutral Citation Number : 2023:DHC:3337

CS(COMM) 101/2022

Page 2 of 44

(I)

Want of pecuniary jurisdiction

4.

Mr Khera first contends that the suit is bad for want of

pecuniary jurisdiction, as it is required to be filed before the District

Court. Mr. Khera submits that the suit is in the nature of a quia timet

action, premised on a mere apprehension that the defendant would

launch the allegedly infringing product in the market. Relying on the

judgment of a Coordinate Single Bench of this Court in Toni & Guy

Products Ltd. v. Shyam Sunder Nagpal¹, Mr. Khera submits that a

claim for damages is not maintainable in a quia timet suit, founded on

mere apprehension. Inasmuch as, in the present plaint, the invocation

of the jurisdiction of this Court has been sought to be justified, by the

plaintiff, solely on the basis of the damages of ₹ 2,00,01,000/- claimed

in the suit Mr. Khera submits that, as no damages can be sought in a

suit such as the present, the suit would have to be filed before the

District Court as, if the claim for damages is excluded, the suit would

stand valued only at ₹ 1,000/-.

5.

The objection is without substance. Toni & Guy¹, in para 11,

clearly notes that, in that case, ―admittedly the defendant has not used

the trademark by either infringing the same or passing off‖. As

against this, in the present case, there is a specific allegation that the

defendant has started manufacture and is already selling, or in the

process of commencing sale, of the infringing products in the market.

No more need be averred, and no more need be seen. Order VII Rule

11 is premised on the assertions in the plaint, to be taken on demurrer

1 2007 (2014) DLT 309

Digitally Signed By:SUNIL

SINGH NEGI

Signing Date:15.05.2023

19:59:40

Signature Not Verified

Neutral Citation Number : 2023:DHC:3337

CS(COMM) 101/2022

Page 3 of 44

as correct. Viewed thus, the present case cannot be likened to Toni &

Guy¹. The analogy is obviously misguided.

6.

No case for rejecting the present suit under Order VII Rule 11

for want of pecuniary jurisdiction, therefore, exists.

(II)

Want of territorial jurisdiction

7.

Mr. Khera next alleges that the suit is bad for want of territorial

jurisdiction, as the defendant is located outside Delhi and Plaintiff 1 is

in Sweden. Though Plaintiff 1 has a subordinate office, Plaintiff 2, in

Delhi, Mr. Khera has predicated his challenge solely on Section 20 of

the CPC.

8.

In the first place, a defendant cannot seek dismissal, or

rejection, of a suit on the ground of want of territorial jurisdiction.

Order V