Delhi High Court came down heavily on Triveni Interchem Pvt. Ltd (Triveni) in a recent order (Pfizer v. Triveni) and imposed costs worth whopping 2 Crores on it for “wilful and contumacious disobedience” of the interim injunction order dated 21st October 2021, whereby the court had restrained Triveni from manufacturing and selling Palbociclib.
Pfizer moved an application under Order 39 Rule 2A alleging that despite the injunction, Triveni was selling Palbociclib in different packaging. Triveni asserted that they have never manufactured or sold Palbociclib, something which the court didn’t take kindly to, as it was contrary to their previous affidavit wherein they had accepted that they had listed the infringing product on different websites. In light thereof, the court held them liable for not obliging with its interim injunction order. Triveni then filed another affidavit wherein it contended that though, in 2020-21 and 2021-22, they sold pharmaceutical preparations worth INR 18,97,26,560/- and INR 36,17,27,880/- respectively, however, Palbociclib was sold only on 22nd July 2022, at INR 16,402.
In light of these conflicting submissions (wherein the Defendant first accepted that they have advertised the infringing product then later argued that they have never manufactured nor sold the infringing product, and then for the third time argued that they have purchased and sold the product just once.) the court rejected this affidavit. The court observed that “the defendant, who has already been found guilty of wilful and contumacious disobedience, against which the defendant has not preferred any appellate or other remedy, is also unwilling to come clean before this Court or to disclose to this Court the amount of Palbociclib in which it has dealt.”
And the Punishment
To summarize quickly Order 39 Rule 2A prescribes that the court may 1) order the property of the disobedient party to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months; 2) If the disobedience persists after 1 year, the court may sell off the attached property and compensate the affected party for the loss. The court however, in the present case has added a third leg of remedy in the present case.
The court directed Triveni to pay INR 2 Crores to the Plaintiff, in the interest of justice, within 2 weeks defaulting which its director shall be detained in civil prison for 2 weeks. The reason for this deviation from the above 2 usual steps was the understanding that “detention in civil prison compromises the liberty of the contemnor and is an extreme step, to be taken only where there is no other manner in which the contempt could be purged”.
Ensuring that injunction orders once passed are properly enforced is indeed a confidence-boosting measure for those relying on the rights granted to them under the patent system. However, there are certain parts in the order though, that could’ve benefited from a bit more clarity. For instance as a general observation the court appears to have used the term “contempt” and “disobedience” interchangeably. But both these terms do not carry the same meaning. As explained by Allahabad High Court in Indu Tiwari vs. Ram Bahadur Chaudhari “It is well settled that the matter of contempt is always an issue between the court and the contemner. No right vests in a private party to get any person punished for contempt. …. As opposed to this, if a person obtains in interim injunction or a final decree for injunction, he gets a right to enforce it..” Also, it is pertinent to note that the court has not elaborated on the reasoning as to how it fixed INR 2 Crore as the costs in the present matter, which could have been a good guiding principle for the courts in the future. Instead, the court has simply recorded that the defendant sold pharmaceutical products (and not Palbociclib) to the tune of ₹ 18,97,26,560/- during the year 2020-21, ₹ 36,17,27,880/- during the year 2021-22 and ₹ 13,36,38,551/- during the period April to September 2022 and then passed the order imposing the above cost. Some clarity on these points could’ve been helpful in the utilisation of these concepts as precedence, going forward.