Interim orders, in the ideal world, should be short-lived creatures. In the cases we’re putting before you, however, it appears that they are being nurtured and nourished by a combination of actors, both from the bar and the bench. This particular case features an ex parte interim order that’s been in force for no less than forty four months. That’s right – almost four years and counting. In the paragraphs below, I examine the manner in which this astounding injustice has proceeded.
In Vifor v. D. Mohan Rao, the plaintiff was able to obtain an ex parte interim injunction from the Delhi High Court restraining Symed Labs from advertising the iron carboxymaltose API on its website, and from otherwise dealing in the product in September 2011. As on December 2011, Symed had removed (see comparison with same page in November 2011) the API from the product list on its website, indicating that it had taken steps to comply with the injunction. Interestingly, by 2013, the company had added a disclaimer on its website asserting that the mere listing of products on its website would not constitute infringement.
Disregard for Supreme Court guidelines
As has been the case with other ex parte injunctions we’ve looked at, the order suffers from several defects when held against the standard demanded by the Supreme Court’s guidelines – it does not limit the life of the ex parte injunction, takes no specific steps to ensure an expeditious hearing for the defendant, and does not place on record the fact that the plaintiff shall be bound to pay costs if the injunction fails to overcome challenge by the defendant.
Pervasive listing woes
Further, it must be noted that even in listing the case for hearing, judges seem to display an almost callous disregard for the urgency of the situation. As noted above, the ex parte injunction was issued in September, but the same order listed the matter for hearing only in December. This can only mean that the court has failed to account for the unquantifiable losses that would accrue to the defendant by this restraint upon their business in the intervening three months. I must emphasize, however, that this is not a criticism of the judge – I’m merely trying to illustrate, with concrete examples, the mind-set that pervades our judiciary’s systemic disregard of such “interim” injustices.
Unconventional litigation strategies?
In this case, the December date swung by, and the defendant’s counsel seems to have filed an IA under Order 7 Rule 11 of the CPC to have the plaint rejected. I understand that this could be part of a broader litigation strategy, but I’m curious as to why the defendant took this approach instead of seeking relief under Order 39 Rules 3A and 4 to resolve the interim order.
At the next hearing in January 2012, the judge (I’ll call him Judge #2, since he’s the second to hear this matter) records that the plaintiff has filed a reply to the defendant’s IA, and goes on to list the matter for May 2012 – a full four months later. Again, the fact that it’s a different judge ordering the same kind of listing delay is reflective of a collective disregard from the bench as a whole, rather than individual judges.
Defendant plays along
Another troubling feature of these cases is the willingness displayed by the defendant to play along with the delays in litigation. In one instance, the plaintiff sought additional time to respond to the defendant’s counter-claim – time that seems to have been granted solely because the defendants made no attempt to oppose the delay. It’s important to keep in mind that the defendant has, by now, been restrained from conducting his ordinary business for over six months, leading to immeasurable financial losses. What, then, could be a reason for him to cheerfully tolerate further delay even as interim orders continue to eat into his revenue? Two possible explanations arise. Could it be that the defendant’s counsel refrains from opposing delays because they were employing the same tactic while representing plaintiffs in similar cases? Or could it be that companies like Symed, who have been on the plaintiff side of such disputes (eg. against Sharon), are similarly refraining from opposing delays because they’ve employed the same tactic in their other cases?
Hearings speed up, then go back to snail’s pace
May 2012 has come and gone, but even with Judge #2 holding hearings in quick succession, the defendant’s IA is still pending. The Delhi High Court’s vacation is presumably imminent, and the matter is listed for July. On the July date, the matter comes up before Judge #3, who notes that Judge #2 has heard the case previously, and would be better placed to hear it. Meanwhile, it appears that the defendant has finally filed an IA seeking vacation of the temporary injunction under Order 39 Rule 4. In August, Judge #2 records that both parties are yet to address their “substantial submissions”, and orders the matter to be listed in September. The plaintiff seeks an adjournment on that date, and Judge #3 – the third of three judges who have heard this case – orders yet another delayed listing, this time in February 2013.
More listing woes, adjournments and a possible settlement
Come February, Judge #4 finds the case before his court, and he orders the matter to be listed next in July, with no reasoning behind the delay. (That’s four judges out of four, for those of you keeping track.) In July, Judge #5 records that pleadings have been completed in the Rule 39 IAs, and lists the matter for a full four months later in November. (Five out of five.) After another fortnight’s adjournment (again, bafflingly, at the defendant’s request), the parties seem to begin exploring the possibility of settling out of court. Three months later, the parties tell Judge #1 that they’re at an advance stage of settlement, and seek an adjournment. Another instance of the plaintiff seeking a delay and the defendant accommodating the request in bonhomie spirit comes up in March 2014.
It is now April 2015. In the intervening months, counsel have requested pass-overs, been unavailable in court, sought adjournment, cancelled a court date and been out of town, at various points. Once again, the defendants have filed for an adjournment, and Judge #2 orders the next hearing for September this year. It’s been forty four months now since interim orders came into force in this case, and it’s going to be another four months before the case is heard next.
The interim order will have celebrated its fourth birthday around the time of its next hearing, with a final resolution of the matter appearing no closer than it did in 2011.