BRISTOL MYERS SQUIBB HOLDINGS IRELAND UNLIMITED COMPANY & ORS. vs JIGS CHEMICAL LIMITED & ANR.
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 180/2022 & I.A. 12682/2023
BRISTOL MYERS SQUIBB HOLDINGS IRELAND UNLIMITED COMPANY & ORS. ….. Plaintiff
Through: Ms. Prachi Agarwal, Ms. Ridhee Bajaj, Advs.
versus
JIGS CHEMICAL LIMITED & ANR. ….. Defendants
Through: Mr. Naman Joshi, Ms. Ritika Vohra and Mr. Anirudh Singh, Advs. for Defendant 2
CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGEMENT (ORAL)
% 13.12.2023
1. The dispute in the present case stands settled between the plaintiff and Defendant 2 with the intervention of the Delhi High Court Mediation and Conciliation Centre.
2. Settlement Agreement dated 15 July 2023 has been placed on record.
3. The terms of Settlement Agreement read as under:
1. The Defendant No. 2 acknowledges the validity of the Plaintiff No.1s patent, IN 247381 during its term, which expired on September 17, 2022.
2. The Defendant No. 2 confirms that subsequent to filing of the present proceedings, they have taken-down and blocked the infringing listing http://www.indiamart.com/proddetail/apixaban-14207294148.html on its platform www.indiamart.com , related to Apixaban in any form (API or a finished formulation under any brand name whatsoever) in compliance with the orders passed by this Honble Court in Bristol Myers Squibb Holdings Ireland Unlimited Company & Ors. v. Jigs Chemical Ltd. & Anr. bearing number CS(Comm) No. 180 of 2022 dated March 25, 2022 which is verified and agreed by the Plaintiffs.
3. The Defendant No. 2 further undertakes that whenever the Plaintiffs come to know of any other listings of Apixaban or links where Apixaban is listed on Defendant No. 2s website, notice shall be given by the Plaintiffs to the Defendant No. 2 through counsel, upon which, within 5 days, the said listings shall be taken down, in compliance with the applicable guidelines relating to intermediaries. The request for removal of the impugned product shall be accompanied with the relevant details of the infringing product along with Plaintiff No. 1s relevant documents, validly registered and existing Patent Number in relation to such medicine/pharmaceutical product/product etc. The said details shall be sent by either of the Plaintiffs on this email ID: grievance@indiamart.com .
4. The Defendant No. 2 shall acknowledge the complaint within twenty-four hours and dispose-off such complaint within a period of five days from the date of its receipt.
5. Subject to Defendant No. 2s undertakings hereinabove, the Plaintiffs agree to forego prayers at paras 85(c), 85(d),85(e) and 85(f) for any damages and costs from the Defendant No. 2.
6. The present suit may be decreed in terms of the prayers in the suit, except to the extent stated in Para 5 hereinabove, and aforesaid terms and the Plaintiffs are entitled to seek full refund of the court fees paid by it under Section 16 of the Court Fees Act, 1870.
7. That in case of any breach of the terms of settlement as stated herein, the Plaintiffs reserve their right to seek any remedies available to them in law and equity including a right to revive the suit and claim damages against the said Defendant No. 2.
8. The Parties agree that they have executed the present Settlement Agreement of their own free will and volition, without any force or pressure from any person. The Parties also agree that they have understood the contents of the present Settlement Agreement as the same have been explained to them by the Mediator and their respective counsel, in the presence of each other and they have consented to the same in its true letter and spirit, and as such they shall not dispute the same ever in future.
9. The Parties agree that they shall abide by the terms and conditions set out in the present Settlement Agreement and shall not dispute the same hereinafter in future either themselves, or through any third parties. The Parties further agree that the statements made by them herein, in this Settlement Agreement, shall be taken as their respective undertakings before the Honble Court.
10. The Parties hereto state that they have no further claims or demands against each other and all the disputes and differences regarding the subject matter of the present suit have been amicably settled by the Parties hereto through the process of mediation.
4. The plaintiff and Defendant 2 are represented by learned Counsel who undertake on behalf of their respective clients to remain bound by the terms thereof.
5. The Court has perused the terms of settlement and find them to be lawful and in order.
6. As such, nothing survives for adjudication in the present suit between the plaintiff and Defendant 2.
7. Defendant 1 was proceeded ex parte by order dated 18 October 2022. Subsequently, Defendant 1 filed IA 12682/2023 for setting aside the said order. Said IA was field on 12 July 2023. Thereafter, this matter has come up before this the Court on 17 July 2023, 5 October 2023, 31 October 2023, 6 December 2023 and today.
8. There has been no appearance, whatsoever, on behalf of Defendant 1 on any of the said occasions.
9. Accordingly, IA 12682/2023 is dismissed.
10. Having heard Ms. Prachi Agarwal, learned Counsel for the plaintiff and having perused the material on record, I am of the opinion that this suit can be decreed qua Defendant 1 by exercising powers vested under Order VIII Rule 10 of the CPC, especially given the undated affidavit which was notarized on 5 January 2023, filed by Defendant 1 under index dated 6 January 2023 through counsel.
11. The plaint asserts Indian Patent 247381 (IN381) which stands registered in favour of the plaintiff and claims the compound Apixaban.
12. Ms. Agarwal points out, quite fairly, that the suit patent has expired on 17 September 2022. As such, the patent is now in the public domain and, therefore, there can be no injunction against its exploitation as sought in the plaint.
13. Nonetheless, para 5 of the afore-noted affidavit filed by Defendant 1 asserts that Defendant 1 de-listed Apixaban from its website and has never commercialized the product. The said statement is taken on record.
14. Ms. Agarwal submits that, however, token costs may be awarded against Defendant 1 as the plaintiff was unnecessarily constrained to institute the present litigation.
15. In view thereof, the present suit stands decreed qua Defendant 1 with the direction to Defendant 1 to pay costs, to the plaintiff, of ? 50,000/- within a period of four weeks from today.
16. The suit stands decreed qua Defendant 1 and 2 in the aforesaid terms.
17. Let a decree-sheet be drawn up accordingly.
18. The plaintiff would be entitled to refund of the court fees deposited by it.
C. HARI SHANKAR, J.
DECEMBER 13, 2023
dsn
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CS(COMM) 180/2022 Page 1 of 5