India: High Court imposes damages on Triveni Interchem Pvt Ltd for Disobeying Interim Injunction
In an order dated January 24, 2023, the Hon'ble Delhi High Court (hereinafter referred to as “the Hon’ble Court”) in Pfizer Inc & Ors. Vs Triveni Interchem Private Limited & Ors. [CS(COMM) 442/2021 & I.A. 21887/2022, I.A. 102/2023] reprimanded Triveni Interchem Pvt. Ltd. (Defendant) for "wilful" and "contumacious" contempt of Court for disobeying the interim injunction order dated October 21, 2021, and imposed the Defendants to pay, to the Plaintiff (Pfizer), an amount of INR 2 crores (~USD 241,921) as damages.
On October 21, 2021, the Court granted ad interim relief to the Plaintiff by restraining the Defendants from infringing the suit patent IN 218291:
from making, selling, distributing, advertising, exporting or importing or in any manner directly or indirectly dealing with any product, which has, as an ingredient, Palbociclib or any pharmaceutically acceptable salt
to remove, from their websites, any indication that they are marketing or offering for sale Palbociclib or any pharmaceutically acceptable salt
to delist and permanently remove all advertisements and names relating to Palbociclib API in powder form sold by the Defendant Nos. 1 and 2, or any of its employees, officers, servants, agents, associate and group companies from its platform.
to disclose, to the Court, the details regarding the earnings made by the Defendants by sale of their Palbociclib products, under cover of an appropriate affidavit. The said details should the said defendants so choose, may be furnished in a confidential form.
Despite the order, the Defendants were allegedly distributing Palbociclib in altered packaging, according to the Plaintiff who thereafter filed a contempt petition before the court. Defendants were discovered advertising and providing "for sale" generic Palbociclib in active pharmaceutical ingredient (API) form on their websites and IndiaMART (an e-commerce platform), according to advocates appearing for the Plaintiff. The Court found the Defendants liable for not obliging its interim injunction order.
Thereafter, the Defendants filed another affidavit wherein it contended that though, in 2020-21 and 2021-22, Defendant 1 (Triveni Interchem Private Limited) sold pharmaceutical preparations worth INR 18,97,26,560/ and INR 36,17,27,880/ respectively, no Palbociclib was sold during the said period. However, Palbociclib was sold only on 22nd July 2022, at INR 16,402.
The contradictory submissions by the Defendants, wherein they initially conceded that they have advertised the infringing product, then subsequently argued that they have never manufactured or sold the infringing product, and then for the third time argued that they have purchased and sold the product just once. To which the Court said, “it was not acceptable as it was coming from a person who was completely unwilling to disclose the exact quantity of Palbociclib which the defendants dealt with”. The Court further stated that:
“It is impossible for this Court to believe that Defendant 1 continued to show Palbociclib as a product in which it was dealing, on its own website as well as on third party websites, and never purchased or sold any Palbociclib whatsoever. If the present affidavit is to be believed then, even in the absence of any stock of Palbociclib with it, the Defendant was advertising Palbociclib for sale on the internet. This is a clearly unacceptable position and is contrary to basic principles of trade”.
Therefore, the Court opined that since the Defendant had clearly committed wilful and contumacious contempt of the court, the defendant has rendered himself liable to punishment.
Accordingly, the application was disposed of, and the Defendants were directed to pay the Plaintiff an amount of INR 2 Crores within a period of two weeks from the day of the order. The Court further said if the Defendant fails to pay the amount in two weeks, he shall be taken into custody and detained in civil prison for two weeks.
