MANKIND PHARMA LIMITED vs MACLEODS PHARMACEUTICAL LIMITED
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 875/2023
MANKIND PHARMA LIMITED ….. Plaintiff
Through: Mr. Chander M. Lall, Sr. Advocate with Mr. Ankur Sangal, Ms. Sucheta Roy and Ms. Nidhi Pathak, Advs.
versus
MACLEODS PHARMACEUTICAL LIMITED ….. Defendant
Through: Mr. Amit Sibal, Sr. Advocate with Ms. Archana Sahadeva, Ms. Brinda Nagaraja, Mr. Siddharth Raj Choudhary, Mr. Rishabh Sharma and Mr. Saksham Dhingra, Advs.
CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 11.12.2023
CS(COMM) 875/2023
1. Aggrieved by what it perceives to be disparaging representations made by the defendant of its product ASTHAKIND-DX, the plaintiff Mankind Pharma Limited has instituted the present suit against the defendant Macleods Pharmaceutical Limited, seeking a decree in the following terms.
It is therefore, respectfully prayed that this Honble Court may be pleased to grant the following reliefs in favour of the Plaintiff and against the Defendant:
a. A decree of permanent injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, licensees, representatives and assigns from publishing, circulating or otherwise, howsoever, communicating to the public the Impugned Advertisement (at Page No. 6-7 of the documents) or any part thereof or any other advertisement of a similar nature in any language or in any
manner disparaging the goodwill and reputation of the Plaintiff and its product ASTHAKIND-DX and causing infringement of the Plaintiffs registered trade mark ASTHAKIND; and
b. A decree of permanent injunction restraining the its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, licensees, representatives and assigns from publishing, circulating or otherwise, howsoever, communicating to the public the Impugned Advertisement (at Page No. 6-7 of the documents) or any part thereof or any other advertisement of a similar nature in any language, so as to cause unfair trade practice;
c. A decree of mandatory injunction directing the Defendant to issue a clarificatory statement in order to repair the loss of reputation caused to the Plaintiff by the Defendants Impugned Advertisement;
d. A decree of damages of Rs. 2,00,05,000/- or any other amount which is ascertained at the later stage. The Plaintiff undertakes to deposit necessary additional court fee as may be directed by this Hon’ble Court at a later stage;
e. An order as to costs in the proceedings; and
f. Any other orders as this Honble Court may deem fit and proper in the facts and circumstances of the present case may also be passed.
2. The plaint emphasizes the following two disparaging representations contained in the leaflet circulated by the defendant amongst doctors:
Plaintiffs Product
Image on impugned adversement
3. There can be little doubt that the defendant was specifically targeting the plaintiffs product. However, Mr. Amit Sibal, learned Senior Counsel for the defendant submits very fairly, at the outset, that his client has already discontinued the aforesaid representations altogether and is willing to give an undertaking that it shall not henceforth resort to the said representations or any other representation which would disparage the plaintiffs product ASTHAKIND-DX. He is, therefore, agreeable to the suit being decreed in terms of the prayer clauses therein.
4. Mr. Lall, however, prays for nominal damages.
5. Mr. Sibal submits that, as his client has discontinued the offending representations and has come upfront, at the very outset, with a statement that it would not resort to such representation in future, the Court may restrict its order to grant an injunction and may not award damages.
6. Ordinarily, the Court would have been agreeable to Mr. Sibal suggestion. However, given the facts of the present case, the Court is of the opinion that the defendant should be put to terms.
7. Mr. Lall submits that even if the Court does not award damages, the Court may at least award litigation costs, given the fact that his client has unnecessarily been dragged to Court.
8. Mr. Sibal also clarifies that his client is not standing by the offending representations which it made in the leaflet which was circulated to the doctors, by which the plaintiff is aggrieved.
9. In the circumstances of the present case, the suit stands decreed in terms of prayers (a) to (c) in the aforesaid terms. The defendant shall remain bound by the undertaking given by Mr. Amit Sibal in court.
10. The plaintiff would also be entitled to costs of the present suit which the Court quantifies at ? 1 lakh.
11. The suit stands decreed in the aforesaid terms. Let a decree-sheet be drawn up by the Registry accordingly.
12. The plaintiff is entitled to refund of the court fee deposited by it.
I.A. 24649/2023 (Order XXXIX Rules 1 and 2 of the CPC), I.A. 24650/2023 (Section 12A of the Commercial Courts Act, 2015), I.A. 24651/2023(Order XI Rule 1(4) of the CPC), I.A. 24652/2023 (Section 149 of the Court Fee Act) and I.A. 24653/2023 (Exemption)
13. These applications do not survive for consideration and stand disposed of.
C.HARI SHANKAR, J
DECEMBER 11, 2023
rb
Click here to check corrigendum, if any
CS(COMM) 875/2023 Page 1 of 1