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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :-08.09.2010 Coram The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.20165 of 2010 & M.P.Nos.1&2 of 2010 Aloys Wobben Argestrasse 19 26607 Aurich Germany. Rep. by his power of Attorney holder Mr.Balan Kombi ... Petitioner vs. 1.Enercon (India) Limited Plot No.33 Daman Patiala Road, Bhimpore, Daman 396 210 2.Intellectual Property Appellate Board, 2nd Floor, Annexe-1, Guna Complex, 443, Anna Salai, Chennai 600 018, Rep. by its Deputy Registrar .. Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for all the records of the 2nd respondent contained in O.R.A.Nos.3,4,5,6,7,8,9,10,11,19,20, 25,26,27,38,39,40 and 41 of 2009 and quash the impugned order dated 27.07.2010 passed by the 2nd respondent in Miscellaneous Petition Nos.48 to 51, 74 to 81 and 59 to 64 of 2010 in O.R.A.Nos.3,4,5,8,9,7,39,6,41,11, 19,10,20,25,38,26,27 and 40 of 2009 respectively and consequently dismiss O.R.A.Nos.3, 4,5,6,7,8,9,10,11,19,20,25,26,27,38,39,40 and 41 of 2009. For petitioner : Mr.P.S.Raman Senior counsel for Mr.Sathish Parasaran For Respondents : Mr.V.T.Gopalan Senior counsel and Mr.T.V.Ramanujam Senior counsel for Mr.Thriyambakkannan and Mr.Lakshmikumaran for R1 ***** O R D E R
The prayer in the writ petition is for issuance of writ of Certiorari to quash the orders passed by the Intellectual Property Appellate Board, (hereinafter referred to "as the Tribunal") the second respondent herein, in various miscellaneous petitions filed by the petitioner in the Original Revocation Applications pending before the Tribunal.
2. The matter arises under the Patents Act. The facts which are necessary for the disposal of the writ petition could be briefly set out as hereunder:-
The first respondent herein (hereinafter referred to "as the Company") had filed 18 Original Revocation Applications before the Tribunal for revocation of the patent granted in favour of the writ petitioner under Section 64 of the Patents Act. In the said original revocation application, the writ petitioner filed the miscellaneous petitions for dismissal of the original petitions. The case of the writ petitioner was that he is the owner of the various Patents, pursuant to the grant of Patent by the Patent office during 2006 and the first respondent company filed original applications for revocation of the Patents and these applications were pending before the second respondent Tribunal. In those applications, the writ petitioner has filed individual miscellaneous petitions with the prayer to dismiss the revocation petition filed by the first respondent company and to fix an early date for hearing the miscellaneous petitions challenging the maintainability of the revocation petition.
3. The main ground on which the miscellaneous petitions were filed is by stating that in terms of the Articles of Association of the first respondent company Mr.Yogesh Mehra lacks the competence to file the petition for revocation of the Patents and reliance was placed on Articles 128(1), 157, 158(1), 170(14) and 171(4) of the Articles of Association of the company. It was further contended that even assuming without admitting Mr.Yogesh Mehra had such a power, the same are not unfettered and that the applicant has initiated proceedings before the Company Law Board (CLB) and the same is pending and the Company Law Board by its order dated 24.09.2007 in petition No.121 of 2007 in C.A.No.484 of 2007 has granted an order of status quo to be maintained with regard to all issues pending in the proceedings and no further action could be taken without leave of the Board, in terms of the subsequent order dated 19.05.2008. In the above stated background, the writ petitioner sought for dismissal of the revocation petition.
4. The first respondent resisted the application by filing a reply, inter alia contending that the miscellaneous petition for revocation has been affirmed by one Mr.Balan Kombi and no documentary proof has been shown that the said Mr.Balan Kombi is competent to affirm the reply and that as per the Board resolution dated 27.04.2007, Mr.Yogesh Mehra has been duly authorised to defend and institute suits and proceedings on behalf of the company and that in terms of the said resolution, Mr.Yogesh Mehra, being the Managing Director has the requisite locus standi to file and institute the revocation proceedings on behalf of the company.
5. Apart from the above, in the reply, the respondent company also raised various factual matters in reply to the allegation made by the writ petitioner in the miscellaneous petitions. The writ petitioner has in turn filed a rejoinder to the reply statement contending that the Board resolution dated 27.04.2007, relied on by the respondent is void and non-est and thus Mr.Yogesh Mehra has no locus standi to file the revocation petition, that the various factual allegations in the reply have been denied. Similarly, in each of the other miscellaneous petitions separate affidavits, reply and rejoinders have been filed.
6. The Tribunal took up the miscellaneous petitions for hearing and appears to have heard the matters at length and ultimately after discussing the factual and the legal position observed that there are three ways in which the matter could be disposed of, namely:-
(i)to consider the miscellaneous petition and decide the locus immediately.
(ii)till the Company Law Board decides, adjourn the matter sine die; or
(iii)take up and consider every thing while hearing the original revocation application.
Ultimately, by order dated 27.07.2010, all the miscellaneous petitions were disposed of with a direction to the registry to list the Original Revocation Application on 09.08.2010 to be heard on a day to day basis. Aggrieved by such order, the petitioner has filed the present writ petition.
7. Mr.P.S.Raman, learned Senior counsel appearing for the writ petitioner after extensively setting out the factual aspect of the matter would submit that the writ petitioner has raised the question of locus standi of the first respondent to maintain the application for revocation and such issue ought to have been decided by the Tribunal at the first instance. That the Tribunal has mixed the concept of locus standi and concept of person interested as defined under the Patents Act and therefore, the order of the Tribunal calls for interference. That the finding of the Tribunal is that the proceedings before the Company Law Board will not affect the proceedings before the Tribunal is erroneous. Further, it is contended that there is no urgency for the Original Revocation Application to be taken up for consideration, when such applications of the year 2006 are still pending before the Tribunal. Further, it is contended that the minority share holder has filed the application for revocation and such petition is not maintainable and it tantamounts to the writ petitioner's funds being used to fight a litigation against him. By relying upon the order passed by the Company Law Board dated 29.10.2007, the learned Senior counsel contents that the Company Law Board has ordered of status quo with regard to all issues are pending in the proceedings and therefore, the petitioner is put to irreparable hardship.
8. Mr.V.T.Gopalan, learned Senior counsel for the first respondent would contend that the Tribunal correctly directed the main revocation application itself to be taken up for disposal and that the applications were taken up on 09.08.2010 and have been posted on 14.09.2010 for disposal and no prejudice would be caused to the writ petition. Further, the learned Senior counsel by placing reliance on the decision of the Hon'ble Supreme Court in M/s. Fomento Resorts and Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and Others, 1985 2 SCC 152 and Haribhau Madhav Javle Vs. Ramesh Vithal Choudhari and Others, 2002 10 SCC 101 would contend that the question of locus could be decided as one among the several issues and that would be the correct procedure as per the law laid down by the Apex Court. It is further contended that the Company Law Board by its order dated 19.05.2008 has directed that without leave of the Company Law Board, no Board meeting can be convened or held and no circular resolution is to be proposed be circulated. This order of the CLB came to be passed on 19.05.2008, and the writ petitioner did not seek the leave of the Company Law Board to hold any Board meeting and at this stage of the matter, the petitioner cannot contend that because of the order passed by the Company Law Board his rights are affected.
9. We have given our anxious consideration to the contention raised by both the parties and perused the materials available on record.
10. Admittedly, the preliminary issue raised by the petitioner before the Tribunal does not relate to the jurisdiction of the Tribunal, but rather the locus standi of one Mr.Yogesh Mehra, to maintain the application for revocation. On the one hand, the said Mr.Yogesh Mehra relied on a Board resolution dated 27.04.2007, which according to them authorised him to institute suits and proceedings on behalf of the company. This is contraverted by the writ petitioner by stating that such resolution dated 27.04.2007 is void and non-est. Therefore, to decide as to whether the Managing Director of the company has locus standi to maintain the application for revocation before the Tribunal, it is essential that the factual aspects have to be gone into.
11. Therefore, in such circumstances, the Hon'ble Supreme Court while laying down the practice and procedure to be adopted where several issues are raised before Court and there is possibility of appeal, the Court must deal with all issues instead of disposing of the case on only one issue. In fact the decision by the Hon'ble Supreme Court in the case of M/s. Fomento Resorts and Hotels Ltd., referred supra, specifically took note of the fact that when, there is a possibility of appeal all issues have to be taken up and decided. The facts of the case clearly indicates that there is a definite possibility of appeal against the decision of the Tribunal and the present writ petition itself is one such illustration. Therefore, in our view, the Tribunal rightly directed the miscellaneous petitions to be considered along with the respective Original Revocation Applications and also directed the case to be posted on a specific date and the hearing to be continuous on day to day basis.
12. Hence, we find no good grounds to interfere with the order passed by the Tribunal. Accordingly, the writ petition stands dismissed. The Tribunal is requested to take up the Original Revocation Application along with the miscellaneous petition and hear and dispose of the same preferably within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
To Intellectual Property Appellate Board, 2nd Floor, Annexe-1, Guna Complex, 443, Anna Salai, Chennai 600 018, Rep. by its Deputy Registrar pbn