Case involves applicability of Order 1 Rule 8A of the CPC ” where one of the issues in both the suits concerns the validity of the Ericsson‟s patent, the Court is unable to view such a question as the substantial of question of law that requires intervention in public interest”

  • (73) PTC  129 (HIGH COURT OF DELHI)

Telefonaktiebolaget Lm Ericsson … vs Lava International Ltd on 17 August, 2016

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CS (OS) 764/2015

TELEFONAKTIEBOLAGET LM ERICSSON (PUBL)           ….. Plaintiff

Through: Mr. C.S. Vaidyanathan and Ms.                  Pratibha M. Singh, Senior Advocates with Ms.                  Saya Choudhary Kapur, Mr. Ashutosh Kumar,                  Mr. Adithya Jayaraj, Ms. Sutape Jana, Ms.                  Meetali Agarwal, Mr. Devanshu Khanna and                  Mr. Nikhl Chawla, Advocates.

 

versus

 

LAVA INTERNATIONAL LTD                           ….. Defendant                   Through: Mr. Amit Sibal, Senior Advocate with                   Ms. Yamini Khurana, Ms. Rani Singh,                   Advocates for Applicant in I.A. No.9964/2016.                   Mr. Sudhir Nandrajog, Senior Advocate with                   Mr. Jayant Mehta, Mr. Ashok Aggarwal, Mr.                   Swapnil Gupta and Mr. Shwatank Tripathi,                   Advocates for Applicant in I.A. No. 9904/2016.

HEAD NOTE

Case involves applicability of Order 1 Rule 8A of the CPC

HELD question of law which is directly and substantially in issue in the suit‟ is followed by the expression „it is necessary in the public interest to allow intervention” thereby indicating that the question as contemplated is in the nature of a substantive question of law which affects a large number of persons or body of persons. In the context in which the present suit has been filed, where one of the issues in both the suits concerns the validity of the Ericsson‟s patent, the Court is unable to view such a question as the substantial of question of law that requires intervention in public interest.Moreover, the provision does not contemplate the intervention by a party much less by a party which is itself a party to the substantive suit in which one of the questions is similar to the question that arises in the suit in which such party seeks intervention.

JUSTICE S. MURALIDHAR

ORDER

% 17.08.2016 I.A. No. 9964/2016 (filed by Micromax Informatics Pvt. Ltd. u/O 1 Rule 8 A r/w Section 151 CPC for intervention)

  1. This is an application filed by the Applicant/Micromax Informatics Private Limited („Micromax‟) under Order 1 Rule 8A of the Code of Civil Procedure 1908 („CPC‟) read with Section 151 of the CPC seeking intervention in the present suit filed by the Plaintiff, Telefonaktiebolaget LM Ericsson (Publ) [„Ericsson‟] against the Defendant, Lava International Limited („Lava‟).
  2. The Applicant, Micromax, seeks to intervention in the present suit on the ground that the issues involved in the present suit are identical to the issues involved in the suit filed by the Ericsson against Mercury Electronics Limited and Micromax in CS (OS) No. 442 of 2013 which has been filed in the month of March 2013 i.e., much prior in time than the filing of the present suit.
  3. In para 4 of the application, in a tabular form, the sum and substance in both the suits which have been filed alleging infringement of Ericsson‟s patent by the respective Defendants is set out.
  4. The apprehension expressed by Micromax is that both the suits by Ericsson involve the issue of validity of Ericsson‟s patent and that if the said issue is decided in the suit filed against Lava, i.e., CS (OS) 764/2015 in an earlier point in time, such finding would adversely affect Micromax in CS (OS) No.442 of 2013 when it comes for hearing at a subsequent point in time. This submission is based on the fact that the final hearing in the present suit is slated to commence on 22nd August 2016 whereas the final hearing in CS (OS) No. 442 of 2013 is not yet scheduled since the evidence in the said suit is yet to conclude.
  5. Mr. Amit Sibal, learned Senior counsel appearing for the Applicant/ Micromax has relied upon the decision of this Court in S.C. Jain v. Bindeshwari Devi(1997) 67 DLT 189 to urge that the Court should hear simultaneously both the suits so that there be no conflict of opinion that might be referred to in either suit which should be avoided. Mr. Sibal submits that no prejudice would be caused to either Ericsson or Lava if such an order is passed.
  6. Order 1 Rule 8A of the CPC reads as under:

“8A. Power of Court to permit a person or body of person to present opinion or to take part in the proceedings While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.”

  1. The expression „question of law which is directly and substantially in issue in the suit‟ is followed by the expression „it is necessary in the public interest to allow intervention” thereby indicating that the question as contemplated is in the nature of a substantive question of law which affects a large number of persons or body of persons. In the context in which the present suit has been filed, where one of the issues in both the suits concerns the validity of the Ericsson‟s patent, the Court is unable to view such a question as the substantial of question of law that requires intervention in public interest. Moreover, the provision does not contemplate the intervention by a party much less by a party which is itself a party to the substantive suit in which one of the questions is similar to the question that arises in the suit in which such party seeks intervention.
  2. The mere apprehension that the question could be determined in the present suit on the issue of validity of Ericsson‟s patent, may be adverse to Micromax is not a sufficient ground for ordering that both suits will be heard simultaneously. Also, the recording of the evidence in the present suit has concluded with the suit having reached the stage of final hearing whereas the other suit is still at the stage of recording of evidence.
  3. Mr. Sibal relied upon the following observations of this Court in S.C. Jain v. Bindeshwari Devi(supra):

“21.1. A direction for analogous or simultaneous hearing of the suits requires the Court to take up the two suits for hearing on the same date. The identity of the suits remain distinct and independent from each other. It is not merged either wholly or even partially. The hearing takes place separately in each suit though on the same date. Such are the cases where on account of similar or same question of law arising for decision in different suits or the same material witness being required to be examined in different suits, for the sake of convenience the Court directs the suits to be taken up for hearing on one day. There may be cases where in spite of the parties and or the subject matter being different, not attracting applicability of Section 10, Section 151 CPC, the Court feels that while hearing one suit, and therefore directs the two suits to come up for hearing on the same day.”

  1. It is pointed out by Mr. C.S. Vaidyanathan, learned Senior counsel appearing for the Plaintiff on advance notice, that in the same judgment it is also observed as under:

“if evidence in one suit has been recorded fully, consolidation would be redundant. If evidence has been recorded partly in one suit and then a consolidation is ordered obviously difficulty would arise whether the evidence already recorded in one suit is available to be read in the other suit. This will not be permissible if recording of the evidence has substantially progressed even in part. In such a fact situation a better exercise of discretion would be not to yield to the prayer for consolidation; the only exception being the consent of the parties whereby they may agree to have the evidence already recorded in one suit to be read as evidence in the other suit as well. Though the Court may in appropriate cases after having been satisfied of the need of consolidation order consolidation of the suits and also direct the evidence to be recorded afresh eliminating from consideration the evidence previously recorded.”

  1. Ultimately it is for the Court to take a call on whether such consolidation of suits or simultaneous hearing of the suits will be efficacious. In the present suit there is a specific order expediting the hearing. In the suit involving Micromax too the hearing of the suit has been. It is pointed out by Mr. Sibal himself that recording of the evidence is underway in the suit filed against Micromax. Merely because the list of witnesses in the present suit was filed by Ericsson on 18th February 2016 and on 30th March 2016 in the suit filed against Micromax, the Court is not prepared to, as suggested by Mr. Sibal, accept that there is a deliberate attempt by Ericsson to delay the progress in the suit filed against Micromax. In any event if there is any deliberate attempt by either party in the said suit to delay the proceedings, it will be open to the either party to bring it to the notice of the Court and seek appropriate remedies in that regard.
  2. The Court is also not persuaded to exercise its powers under Section 151 CPC to entertain the prayers in this application. The application is accordingly dismissed.

IA No. 9904/2016 (filed by the Plaintiff u/S 151 CPC)

  1. This is an application filed by the Plaintiff under Section 151 of the CPC seeking inspection of the accounts filed by the Defendant. An advance copy of the application was served upon learned counsel for the Defendant on 12th August 2016.
  2. Mr. Sudhir Nandrajog, learned Senior counsel appearing for the Defendant states, on instructions, that without prejudice to the rights and contentions of the Defendant, they have no objection to the Plaintiff inspecting the accounts filed in a sealed cover by the Defendant.
  3. It is accordingly directed that one authorized representative of the Plaintiff along with learned counsel for the Plaintiff is permitted to inspect the accounts that have been filed in a sealed cover in the presence of the authorized representative of the Defendant along with learned counsel for the Defendant in the Chamber of the Registrar (Original) on Saturday, i.e., 20th August 2016 at 11 am. After the inspection is concluded, the packet containing the accounts will again be resealed. The Plaintiff is permitted to obtain copies of the pages of the accounts which it requires on the payment of usual charges.
  4. The application is disposed of in the above terms.

CS (OS) No. 764 of 2015

  1. It will be open to the parties to obtain, on pen drive, scanned copies of the entire records of the suit from the Court Master.
  2. List on 22nd August 2016, the date already fixed.

S.MURALIDHAR, J AUGUST 17, 2016 Rm

 

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