IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  FAO(OS) 143/2013
  
  
  
  MICROMAX INFORMATICS LIMITED ..... Appellant
  
  Represented by: Dr.Abhishek Manu Singhvi and Mr.Parag Tripathi, Sr.
  Advocates instructed by Mr.Saikrishna Rajagopal, Mr.Sunil Dalal,
  Mr.Sanjeev Narula and Mr.J.Sai Deepak, Advocates.
  
  
  
  
versus
  
  
  
  TELEFONAKTIEBOLAGET LM ERICSSON
  
  (PUBL) and ANR. ..... Respondents
  
  Represented by: Mr.Neeraj Kishan Kaul,
  
  Sr. Advocate instructed by Ms.Pratibha M.Singh, Ms.Saya Choudhary Kapur,
  Mr.Ashutosh Kumar and Mr.Varun Tikmani, Advocates.
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
  
   HON'BLE MS. JUSTICE PRATIBHA RANI
  
  
  
   O R D E R
  
   12.03.2013
  
  C.M.No,4296/2013
  
  
  
  Allowed,
  
  
  
  FAO(OS) 143/2013
  
  
  
  1. The first respondent, Telefonaktiebolaget LM Ericsson (PUBL), a
  company incorporated under the laws of Sweden, instituted a suit on
  the
  
  FAO(OS) 143/2013 page 1 of
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  Original Side of this Court alleging infringement of 8 patents.
  Restraint order, permanent as well as temporary; damages and rendition of
  accounts has been prayed for. The 2 defendants in the suit are: ?Mercury
  Electronics impleaded as defendant No.1 and the appellant Micromax
  Informatics Limited?.
  
  2. From a perusal of the plaint, it appears that the patents relate to
  2G, 3G and EDGE Technology, in its application to devices such as mobile
  handsets, tablets etc.
  
  3. Taking up the suit at its preliminary hearing on March 06, 2013,
  pertaining to I.A.No.3825/2013, invoking power of the Court under Order
  XXXIX Rules 1 and 2 of the Code of Civil Procedure, learned Single Judge
  has issued an interim order. The same reads as under:-
  
  ??Issue notice to defendants by all modes including dasti,
  returnable ??for 17th May, 2013 before Joint Registrar.
  
  ??
  
  ? ?Present suit has been filed for permanent injunction, damages,
  ?rendition of accounts, delivery up etc.
  
  ??
  
  ? ?Mr. Mukul Rohatgi, learned senior counsel for plaintiff states
  that ??plaintiff is the registered owner in Indian of eight patents
  referred to ?as AMR Patents, 3G Patents and EDGE Patent. He states that
  all the ?aforesaid Patents are registered and currently valid.
  
  ??
  
  ? ?Mr. Rohatgi further states that defendants without payment of
  any??consideration are using the plaintiff?s aforesaid patented
  technology in?handsets imported by them.
  
  ??
  
  
  
  
  
  FAO(OS) 143/2013 page 2 of 6
  
  
  
  
  
  ? ?Mr. Rohatgi has also drawn this Court?s attention to the
  judgment??of the Division Bench of this Court in Telefonaktiebolaget LM
  Ericcson??Torshamnsgatan Vs. Union of India and Ors., MIPR 2012 (2) 0345
  as well as??the??order dated 29th January, 2013 passed in CS(OS)
  68/2012??Telefonaktiebolaget LM Vs. Kingtech Electronics (India) and Ors.
  It is??pertinent to mention that in both the aforesaid cases, plaintiff
  herein??was a party to the proceedings.
  
  ??
  
  ? ?Keeping in view the aforesaid, this Court is of the opinion
  that??plaintiff has made out a prima facie case in its favour and balance
  of??convenience is also entirely in its favour. Further, irreparable
  harm??would be caused to the plaintiff if the interim injunction order
  as??prayed for is not granted.
  
  ??
  
  ??? ?Accordingly, the Custom Authorities are directed that as and when
  any consignment is imported by the defendant No.2, intimation
  thereof??shall be given to the plaintiff and objections, if any, of the
  plaintiff??thereto shall be decided under Intellectual Property Rights
  (Imported??Goods) Enforcement Rules, 2007 till further orders.
  
  ??
  
  ? ?Let the provision of Order 39 Rule 3 CPC be complied within
  a??period of one week.?
  
  
  
  4. Against the said interim order passed requiring the Custom
  Authorities to decide objections, if any, filed by the plaintiff whenever
  consignments are imported by the appellant; the decision to be as
  envisaged under the Intellectual Properties Rights (Imported Goods)
  Enforcement Rules, 2007, the instant appeal has been filed. The grievance
  urged in the appeal is that the learned Single Judge has not given any
  reasons recording prima facie finding as to why the interim order in
  question was being issued.
  
  
  
  FAO(OS) 143/2013 page 3 of 6
  
  
  
  5. It is urged by learned senior counsel appearing for the appellant
  that there is no presumption in favour of a patent holder on the strength
  of a patent being registered. Learned senior counsel urges that normally
  the rule of law is not to grant injunction when issues pertaining to
  violation of patents arises for consideration before the Courts for the
  reason damages would be a good measure.
  
  6. We do not reflect our opinion on the second aspect of the
  submission urged for the reason if a strong prima facie case is made out
  it would be permissible for the Courts to pass injunction order. It
  would all depend on the facts of each case.
  
  7. With respect to the first contention urged that the impugned order
  cannot be sustained even as an ex parte order, for the reason the learned
  Single Judge has not prima facie reflected upon, with reference to the
  pleadings in the plaint, to find out whether a prima facie case in favour
  of the plaintiff was made out i.e. did the plaintiff have a valid patent
  and that prima facie goods which were being imported were of a kind where
  the patent was violated, we have to only say that the argument overlooks
  the fact that prima facie finding, balance of convenience and irreparable
  harm, contemplated by the learned Single Judge is with respect to
  direction which has been issued. The direction issued is to the Custom
  Authorities that when any consignment is imported by defendant No.2,
  intimation thereof be given by the plaintiff and objections filed, if
  any, would require a decision under
  
  
  
  
  
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  4 of 6
  
  
  
  the Intellectual Properties Rights (Imported Goods) Enforcement Rules,
  2007. This would obviously mean that the learned Single Judge has found a
  prima facie case to direct the Custom Authorities to be cognizant of
  their statutory obligations and duties under the Intellectual Properties
  
  Rights (Imported Goods) Enforcement Rules, 2007 and that if an issue arise on objection filed by the plaintiff, statutory discretion vested in
  the Custom Authorities would be exercised.
  
  8. We, therefore clarify, that the impugned order would not be read by
  the Custom Authorities as an opinion prima facie in favour of either
  party. Needless to state the impugned order would require the Custom
  Authorities to exercise statutory discretion as envisaged by the
  Intellectual Properties Rights (Imported Goods) Enforcement Rules, 2007.
  
  9. Observing as above, we would further observe that propriety and
  comity would require us to say no further inasmuch as the appellant has a
  right to invoke order XXXIX Rule-4 CPC before the learned Single Judge.
  
  10. Reminding the learned Single Judge that if such an application is
  filed the mandate of law requires every endeavour to be made to decide
  the application within 30 days. Needless to state, if after 30 days the
  grievance subsists the appellant would be entitled to invoke the
  appellate jurisdiction of this Court.
  
  11. As regards the Custom Authorities, we direct that if plaintiff
  raises any objections to the goods imported by defendant No.2, decision
  pertaining thereto shall be made as per Rules within the shortest
  possible time.
  
  
  
  FAO(OS) 143/2013 page 5 of 6
  
  
  
  12. We clarify that we have not expressed any opinion on the merits of
  the rival contentions pertaining to the patents.
  
  13. Appeal stands disposed of.
  
  14. No costs.
  
  15. Dasti.
  
  
  
  C.M.No,4295/2013
  
  
  
  Dismissed as infructuous.
  
  
  
  
  
   PRADEEP NANDRAJOG, J.
  
  
  
  
  
  
  
   PRATIBHA RANI, J.
  
  MARCH 12, 2013
  
  ?dc?
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
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