Monsanto Technology Llc Thru The Authorised Representative Ms. Natalia Voruz & Others vs Nuziveedu Seeds Ltd. Thru The Director & Others

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4616­4617 OF 2018 MONSANTO TECHNOLOGY LLC THRU THE AUTHORISED REPRESENTATIVE MS. NATALIA VORUZ & OTHERS ....APPELLANT(S)

VERSUS

NUZIVEEDU SEEDS LTD. THRU THE DIRECTOR & OTHERS ...RESPONDENT(S)

with

CIVIL APPEAL NO(s). 188 OF 2019 (arising out of SLP(C) No.19411 of 2018 FEDERATION OF SEED INDUSTRY OF INDIA (FSII) ….APPELLANT(S) VERSUS NUZIVEEDU SEEDS LTD. AND OTHERS….RESPONDENT(S)

CIVIL APPEAL NO(s). 189­190 OF 2019 (arising out of SLP(C) Nos.16479­16480 of 2018 NUZIVEEDU SEEDS LTD. AND ORS. ..APPELLANT(S) VERSUS MONSANTO TECHNOLOGY LLC AND OTHERS ...RESPONDENT(S)

CIVIL APPEAL NO(s). 191­192 OF 2019 (arising out of SLP(C) Nos.19409­19410 of 2018 ALL INDIA KISAN SABHA ..APPELLANT(S) Signature Not Verified VERSUS Digitally signed by R NATARAJAN Date: 2019.01.08 16:49:55 IST Reason: MONSANTO TECHNOLOGY LLC AND OTHERS ...RESPONDENT(S)

1 JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellants/plaintiffs in Civil Appeal Nos.4616­4617

of 2018 instituted Civil Suit (Comm) No. 132 of 2016 seeking

permanent injunction against the defendants from using the

trademark “BOLGARD” and “BOLGARD II” brand cotton

technology, violating the registered patent no. 214436 of the

plaintiffs, and also to further restrain the defendants from

selling and or using seeds/hybrid seeds bearing the patented

technology, infringing the registered patent of the plaintiffs,

along with rendition of accounts. The parties shall, for

convenience, be referred to by their position in the original

suit.

3. The plaintiffs pursuant to their patent rights had

entered into a sub­licence agreement dated 21.02.2004 with

the defendants for an initial period of ten years. The

agreement entitled the defendants to develop “Genetically

Modified Hybrid Cotton Planting Seeds” with help of the

2 plaintiffs’ technology and to commercially exploit the same

subject to the limitations prescribed in the agreement. The

agreement also provided for payment of licence fee/trait value

by the defendants, for use of the plaintiffs’ patented

technology. The agreement after extension was ultimately

terminated by the plaintiffs on 14.11.2015 due to disputes

regarding payment of licence fee/trait value in view of

subsequent price control regime introduced by the State, and

to which the defendants required adherence by the plaintiffs.

The plaintiffs filed an application for injunction under Order

39, Rule 1 and 2 of the Code of Civil Procedure (hereinafter

referred to as ‘the Code”), to restrain the defendants from

using their registered trade mark in violation of the registered

patent during the pendency of the suit in view of the

termination of the agreement.

4. The defendants in their written statement inter alia

contended that their rights were protected under the

Protection of Plant Varieties and Farmers’ Rights Act, 2001

(hereinafter referred to as ‘the PPVFR Act’). The suit patent

was bad because claims 1­24 were “process claims”

3 concerning genetic engineering or biotechnology method to

insert “Nucleic Acid Sequence” (NAS) into a plant cell as in

claim 25­27 practiced in laboratory conditions, unlike the

complete biological process adopted by the defendants. The

NAS was a chemical composition incapable of reproducing

itself and was thus not a micro­organism. Only on insertion

into a plant, a living organism, it imparts Bt.trait (insect

resistance) to the living organism. The defendants also filed a

counter claim no.51 of 2016 seeking revocation of the patent

under Section 64 of the Act, as being in violation of Section

3(j) of the Patents Act (hereinafter referred to as “the Act”) in

respect of plants and seeds that contained DNA sequences,

denying any infringement.

5. The learned Single Judge on 28.03.2017, while deciding

the plaintiffs’ application for injunction, observed that the

issues arising in the suit necessarily required formal proof,

particularly expert opinion, which in complicated matters like

that of patent were crucial for ascertaining the breadth of the

monopoly granted by the specifications of a patent claim.

The nature and extent of the patent claim was more properly

4 a matter to be examined after pleadings were complete and

evidence adduced on the issues arising, which did not merit

comments at the stage of interim injunction. Considering the

existing patent registered under Section 48 of the Act, it was

ordered that during the pendency of the suit, the parties

shall remain bound by their respective obligations under the

sub­licence agreement and that the licence fee/trait value

payable by the defendant shall be governed by the laws in

force. The learned Single Judge simultaneously only issued

notice on the counter claim no.51 of 2016. The order of

injunction dated 28.03.2017, therefore did not deal with or

consider the counter claim. It was prima facie observed that

the defendants having had the advantage of a sub­licence

ever since 2004, appeared unjustified in contending that they

were not bound by the obligations under the agreement in

view of the claimed statutory protections vis­à­vis the suit

patent or the registered trademarks. Prima facie opining that

the termination of the sub­licence agreement by the plaintiffs

on 14.11.2015 appeared unjustified in view of the statutory

5 price restrictions, the termination was held not to be of any

consequence.

6. Aggrieved, both the Plaintiffs and the defendants

preferred appeals. The Division Bench dismissed the

plaintiffs’ appeal upholding the defendants’ contention with

respect to patent exclusion under Section 3(j) of the Act and

that the plaintiffs were at liberty to claim registration under

the PPVFR Act, as the two Acts were not complementary, but

exclusive in the case of all processes and products falling

under Section 3(j) of the Act. Consequentially, the defendants’

counter claim succeeded. The suit was, however, permitted

to continue with regard to the claim for damages and other

reliefs. The plaintiffs were required to continue with their

obligations under the sub­licence agreement including

payment of licence fee/trait value by the defendants in

accordance with law.

7. We have heard learned senior counsel Dr. Abhishek

Manu Singhvi, Sri Kapil Sibal, Sri Neeraj Kaul, Sri K.V.

Vishwanathan, Sri Arvind P. Datar, Sri Jayant Bhushan, Sri

6 Krishnan Venugopal, Sri Shyam Divan and Sri Sanjiv Sen,

and learned counsel Sri Prasahant Bhushan and Ms.

Anandita Mitra on behalf of the parties.

8. Dr. Abhishek Manu Singhvi contended that the

plaintiffs’ suit was for injunction restraining infringement of

an existing and valid patent. The lack of patentability was

never an issue in the suit. The defendants argued lack of

patentability to invalidate the primary issue relating to

infringement only. The counter claim for revocation of the

patent as unpatentable, was neither argued nor adjudicated

by the learned Single Judge. Only notice was issued on the

counter claim bearing no.51 of 2016 while counter claim

bearing no.50 of 2016 challenging the termination of sub­

licence agreement was withdrawn. The issue for existence of

the patent, patent exclusion under Section 3(j) of the Act

was a heavily mixed question of law and facts requiring

formal proof and expert evidence, to be considered at the

hearing of the suit, as rightly observed by the Single Judge.

The defendants in their memo of appeal themselves

contended that the issue regarding existence of the patent

7 and/or its revocation could not have been decided

summarily by the learned Single Judge as these were

matters which required evidence and could be

adjudicated only at the final trial of the suit. The plaintiffs’

claims were under 25­27 only. The process claims

1­24 was never an issue in consideration before the Single

Judge and yet the Division Bench delved into the same and

held the process claims to be bad also.

9. The plaintiffs had never consented to a summary

adjudication regarding the validity of its patent. The consent

referred to by the Division Bench, had been given only to

decide whether the plaintiffs’ patent had been infringed or

not, as also the scope of the patent, so as to allow or disallow

the relief of injunction. It is incomprehensible that the

plaintiffs holding a valid registered patent under the Act

nonetheless would have agreed to a summary consideration

and validation/invalidation of the patent. The patent

comprises of a DNA construct or nucleotide sequence in

claim 25­27 comprising of three different components, i.e. (i)

a promoter (ii) a man­made gene for the production of Cry2Ab

8 5­endotoxin and, (iii) a third component for the production of

a transit peptide 6. The DNA construct so created did not

exist in nature and upon insertion into a plant confers insect

tolerant trait. A plant is next produced as a “fusion protein”

which comprises the Cry2Ab S­endotoxin 7 bonded with the

transit peptide. The subject patent claims use of bacillus

thuringiensis strain and the development of two genes

designated Cry2Aa and Cry2Ab. Each gene sequence is

known for its ability to synthesize proteins with pesticidal

properties. The NAS is not a living organism but a chemical

created in a laboratory. The “event” which is the positioning

of the NAS at a unique location in the genome of a plant cell

is a separate, subsequent and entirely different invention for

which the plaintiffs have obtained a different patent no.

232681 and which is not the subject matter of the present

suit. In this case, the invention is the NAS and the target of

the invention is its use in a plant cell. The property of the

NAS is what makes the plant produce and localize the toxin

protein in a specific location in the plant cell so as to make

the toxin protein present throughout the plant, in pesticidal

9 effective levels and still produce agronomically stable plants.

Relying on “Marker ­Assisted Recurrent Backcrossing in

Cultivar Development” by Guoyou et.al, it was submitted a

NAS gene once inserted into a plant, was removable and did

not become part of the plant genome, to lose its patentable

characteristics. These were matters to be considered in the

suit on basis of expert evidence.

10. Shri Vishwanathan and Shri Datar for the defendant

have adopted directly and mutually contradictory stands by

contending that claims 25­27 are product claims, namely

parts of a plant, and subsequently that the said claims are

essentially biological process claims. Claims 1­24 are not

excluded under Section 3(j) being essentially biological

processes as there exists significant human intervention. Dr.

Singhvi very fairly admitted that he was not in a position to

support the termination of the sub­licence agreement and

that the plaintiffs’ claims for licence fee/trait value had to be

in accordance with the statutory price regime. The seeds

from the plaintiffs’ patented technology were the highest

selling compared to similar other seeds. The plaintiffs have

10 no intention to sue any Indian farmer for violation of patent.

It was lastly submitted that either this Court may remand the

entire matter for adjudication of the patent issue and

infringement or decide the patent issue and then remand the

suit for other issues.

11. Shri Kapil Sibbal contended that a chemical/gene/DNA

construct is not a plant variety, and is not eligible for

protection under the PPVFR Act. A gene cannot be a plant

variety and it would be denied such registration on account

of lack of fulfillment of the conditions precedent in Section

2(za) read with Sections 14 and 15. A gene cannot be a

“plant grouping”, “within a single botanical taxon of the

lowest rank”, which in simple terms means that it cannot

belong to the lowest rank of a plant, namely a species. The

PPVFR Act came into effect from 2007 and in the last 11

years, no infringement action has been filed under the same

or injunction obtained. The department of bio­technology on

their official website has acknowledged the role agro­

biotechnology has to play in feeding billion plus mouths in

this country and the role that “novel genes” can play to deal

11 with biotic and abiotic stresses, enhance productivity and

nutritional quality.

12. Sri Neeraj Kaul submitted that the patented NAS is not

the creation of any biological process. The correct admixture

of the promoter, the man made gene for the production of

Cry2Ab endotoxin and the 3rd component for the production

of the transit peptide leading to the DNA construct, is entirely

the creation of the human intervention. The Division Bench

wrongly holds the invention to be a plant variety. It is only

plant varieties and seeds which are covered by the PPVFR

Act. The Patent Act and the PPVFR Act are mutually

exclusively.

13. Shri Vishwanathan leading the arguments on behalf of

the defendants submitted that no patent rights can be

exercised with respect to genetically modified cotton planting

seeds being developed by the defendants through

conventional breeding methods and sold to the farmers. If

the patent rights of the plaintiffs be accepted, then the regime

provided under the PPVFR Act for plant intellectual property

12 with respect to genetically modified plants would be entirely

defeated. The plaintiffs’ claim was essentially of a “breeder”

for developing a variety and therefore its donor seed

containing the NAS was registerable under the PPVFR Act

and they were entitled to benefit sharing under Section 26

after such registration. No patent could be granted in a

plant, or part of a plant, under Section 3(j) of the Act. Patent

infringement analysis involves two steps: the proper

construction of asserted claims and the determination as to

whether the product infringes the asserted claim as properly

construed. The plaintiffs claim to patent was never for a

chemical sequence in a vial. The plaintiffs’ claimed invention

was only an improvement on prior art where it claimed that it

had found a way to have a plant produce a higher level of

expression of the endotoxin protein by localizing it to the

plastid thereby reducing insect tolerance and at the same

time producing morphologically normal plants. The plaintiffs

were also precluded from claiming rights on the genetically

modified Bt. cotton seeds on basis of prosecution history

estoppel. The order of the Division bench being based on

13 consent; it is not open for the plaintiffs to contend to the

contrary now.

14. Shri Datar submitted that the “product” in claim 25­27

for NAS is a chemical is false, because any chemical that is

inserted into a plant is not capable of being passed on to the

seeds of that plant and to the future progeny as the chemical

will be metabolized by the plant itself and will never be

transmitted to its seeds. Further, the NAS, by the wording of

claims 25­27 itself, is a plant gene which is meant to be an

inherent, intrinsic and integral part of the plant as it exists at

the sub cellular level. The cell after transformation with the

gene through the biological process of tissue culture results

in a transgenic plant that produces seeds having the

essential characteristic of these transgenic plants. Therefore,

claims 25 to 27 even if it represents merely a “gene” will

manifest as an inseparable and inheritable part of a plant

and cannot be patented. The NAS gene inserted into the

plant becomes an inseparable part of the plant at the sub­

cellular level by an irreversible biological process. It exists in

every cell of the transformed plant. It not only expresses in

14 the plant to produce endotoxin but also inherits into progeny

plants in perpetuity. It does not result in a “product” which

can be put into a vial and sold as such. The claims must be

construed so as to give an effective meaning to each of them

but the specifications and the claims must be looked at and

construed together.

15. Shri Jayant Bhushan submitted that the plaintiffs did

not bring the NAS in a vial and but imported plants seeds

containing NAS. These seeds were not protected by Patent.

Indian seed companies were given donor seeds which already

had the NAS/Bt. Trait integrated in them and was capable of

germination. What the Indian Seed companies do is to cross

one of the plaintiffs’ plants with the plants of their

proprietary Indian varieties suitable for cultivation in India,

to develop a third/new cross­bred cotton variety which would

have the Bt. trait from plaintiffs’ variety so as to resist

Bollworm and other traits from their own developed varieties.

Since the Indian Seed Companies do not use the NAS in

isolation nor do they use the method of introducing the NAS

into the plant through the method described in the patent,

15 there is no infringement of the patent. NAS is an essentially

biological process in which the patented product is neither

separately used nor the patented process of insertion into a

plant is used, the NAS is not being made or used by the

Indian Seed Companies. The patent on a gene sequence in a

test tube cannot negate/undo the important researchers’ and

farmers’ rights under Sections 30 and 39 of the PPVFR Act.

Section 39 relates to Farmer’s Rights entitling him to save,

use, sow and re­sow his farmed produce including a

registered variety protected under the Act. It was lastly

submitted that if the Court is not inclined to uphold the order

of the Division Bench, the matter may be remanded to the

Division Bench for fresh hearing on the injunction matter

because the correctness of the injunction order dated

28.03.2017 never came to be tested or considered by the

Division Bench.

16. Shri Divan submitted that that there is no inventive

step in the plaintiffs’ patent claim, until the artificial NAS is

inserted into a plant so that the plant starts producing the

delta endotoxin which is toxic to the Bollworms. There is no

16 capability of industrial application of the NAS except to

become part of a plant and to develop a transgenic plant.

The threshold requirements of an invention in terms of the

patents Act are missing until the implant stage. The

inventive qualities begin when the NAS is inserted in a plant

cell and not before that stage. Once, the NAS is inserted in a

plant cell, the exclusion under Section 3(j) applies and the

PPVFR Act becomes operative.

17. Shri Venugopal submitted that a conjoint reading of

Section 2(j) and Section 3(c) of the Act makes it clear that it

excludes patentability both of transgenic plants (invented

through recombinant gene technology in the laboratory) and

those invented through conventional breeding techniques

even where a new plant, variety or species is initially created

through genetic manipulation, to the extent that the

subsequent production or propagation of the plant, variety or

species is done through “an essentially biological process”,

the biological process would not be patentable under Section

3(j) of the Act. Even if patent exclusion under Section 3(j)

was not applicable, still the patent claim could never permit

17 plaintiffs to claim the right to prevent farmers from making,

using, offering for sale or selling plants or seeds of the cotton

plant that contain Bt. gene. The patent of an artificial gene

and the process for inserting it into the genome of a plant,

will not entitle the exercise of rights under Section 48 of the

Act in respect of a plant that contains the artificial gene on

which it has a patent. The protection under Section 48 of the

Act is capable of being exercised against other biotechnology

companies that seek to replicate the Bt. gene product or the

process of insertion of that gene in the genome of the cotton

plant. Both the Patents Act and PPVFR Act have a link that

is to protect the interests of the farmers so that they are not

burdened by exorbitant rates of seeds.

18. Shri Prashant Bhusan, Shri Sanjiv Sen, and Smt.

Anandita Mitra on behalf of the interveners submitted that

the NAS is not “capable of industrial application” unless it

becomes a part of the plant cell where it is expressed by the

plant cell through essentially biological processes of

transcription, translation, and replication, to produce the

desired protein. The Biodiversity Act which prohibits the

18 “use” of any biological resources occurring in India for

commercial utilisation and which includes genes used for

improving crops and livestock through genetic intervention

necessitates prior permission from the National Bio Diversity

Authority which has not been taken by the plaintiffs. The

NAS only adds a trait to a plant leading to development of a

transgenic variety creating donor seeds. The seeds are not

patentable under Section 3(j) of the Act though the plaintiffs

may be entitled for benefit sharing under the provision of the

PPVFR Act as defined under Section 2(h) of the PPVFR Act.

The claim of the plaintiffs has ramifications beyond the

immediate parties.

19. We have considered the respective submissions made

on behalf of the parties. Though very elaborate submissions

have been made with regard to facts and the technical

processes involved in the patent in question, the provisions of

the Act, the PPVFR Act and a large volume of case laws for

construction of patents, the obligations under the World

Trade Organisation (WTO), General Agreement on Tariffs and

19 Trade (GATT), Trade­Related Aspects of Intellectual Property

Rights (TRIPS) Agreement, leading to the Patents Amendment

Act, 2002 on 25.06.2002, in view of nature of the order

proposed to be passed, we do not consider it necessary to

deal with the same at this stage, and leave open all questions

of facts and law to be urged for consideration in appropriate

proceedings.

20. The patent claims 1­24 are with regard to the processes

while claims 25­27 are with regard to the chemical product

called NAS. According to the plaintiffs, the latter was a man­

made DNA construct that did not exist in nature and did not

otherwise form part of a plant existing in nature. The DNA

construct was inserted into a plant which confers the trait of

insect tolerance to the plant. It comprises of three different

components i.e. (i) A promoter, (ii) A gene for the production

of Cry2Ab 5­endotoxin and (iii) a third component for the

production of a transit peptide. Of these three, Cry2Ab 5­

endotoxin is stated to be a man­made gene. This nucleic acid

sequence is then inserted into the cell of the plant at a

particular location resulting in the production of “a fusion

20 protein” which comprises the Cry2Ab 5­endotoxin 7 bonded

with transit peptide. The production of a fusion protein is

critical in this respect for the technology to be effected in

plants. The bacillus thuringiensis strain does not produce

such a fusion protein. It is the plaintiffs’ claim that it is only

its technology that allows a cotton plant to produce the

Cry2Ab 8­endotoxin protected inter­alia by claims 25­27 of

the patented inventions. The subject patent claims the use of

Bacillus thuringiensis strain and development of two genes

designated Cry2Aa and Cry2Ab. Each gene sequence is

known for its ability to synthesize proteins with pesticidal

properties.

21. It is the contention of the defendants apart from the

unpatentability of the plaintiff’s claim, they have not violated

patented rights, if any, as:

“a) Nuziveedu sowed seeds of their proprietary cotton varieties alongside the Transgenic Bt. Cotton seed.

b) The Transgenic Bt. Cotton seed and the Nuziveedu’s varieties seed yielded different plants, which were cross­pollinated at the flowering stage.

c) The cotton fruits from the Nuziveedu’s cotton varieties had cotton seeds, which were carrying the proprietary hybrid (“Bt. cotton hybrids”)

21

d) Nuziveedu conducted extensive agronomic evaluation trials of newly developed Bt. Cotton Hybrids to ascertain their utility to the farmers.

e) Nuziveedu obtained the approval of the GEAC under the Environment (Protection) Act, 1986 for the commercial release of each new Bt. Cotton Hybrid which were considered satisfactory after internal evaluation, and thereafter produced in mass scale and distributed to the farmers.”

22. Manifestly, the counter claim of the defendants was

never considered by the learned Single Judge as only notice

had been issued on the same. The plaintiffs had preferred an

appeal against the nature of the injunctive relief with regard

to the issue of licence fee/trait value, now conceded by the

plaintiffs. We see no reason to reject the submission of Dr.

Singhvi that it stands to reason why the plaintiffs would have

consented to a summary adjudication of an existing patent

and risk losing the same without any merit adjudication. The

defendants themselves had contended in their appeal that

the issues were complicated requiring expert evidence to be

considered in a full­fledged trial. The Division Bench

therefore ought to have confined its adjudication to the

question whether grant of injunction was justified or

unjustified in the facts and circumstances of the case. The

22 Division Bench ought not to have examined the counter claim

itself usurping the jurisdiction of the Single Judge to decide

unpatentability of the process claims 1­24 also in the

summary manner done. Summary adjudication of a

technically complex suit requiring expert evidence also, at the

stage of injunction in the manner done, was certainly neither

desirable or permissible in the law. The suit involved

complicated mixed questions of law and facts with regard to

patentability and exclusion of patent which could be

examined in the suit on basis of evidence.

23. Section 64 of the Act provides for revocation of patent

based on a counter claim in a suit. It necessarily

presupposes a valid consideration of the claims in the suit

and the counter claim in accordance with law and not

summary adjudication sans evidence by abstract

consideration based on text books only. The Civil Procedure

Code provides a detailed procedure with regard to the

manner in which a suit instituted under Section 9, including

a counter claim has to be considered and adjudicated. The

Code mandates a procedure by settlement of issues,

23 examination and cross examination of witnesses by the

parties, including discovery/inspection of documents,

culminating in the hearing of the suit and decree. A suit can

be disposed of at the initial stage only on an admission inter

alia under Order 12 Rule 6 or when the parties are not in

issue under Order 16 Rule 1 and the other grounds

mentioned therein, none of which are applicable herein. We

are therefore satisfied that the Division Bench ought not to

have disposed of the suit in a summary manner by relying on

documents only, extracted from the public domain, and not

even filed as exhibits in the suit, much less examination of

expert witnesses, in the facts of the present case. There is no

gain saying that the issues raised were complicated requiring

technological and expert evidence with regard to issues of

chemical process, biochemical, biotechnical and micro­

biological processes and more importantly whether the

nucleic acid sequence trait once inserted could be removed

from that variety or not and whether the patented DNA

sequence was a plant or a part of a plant etc. are again all

matters which were required to be considered at the final

hearing of the suit.

24

24. The manner in which a suit instituted under Section 9

of the Code is required to be dealt with and decided, fell for

consideration in Alka Gupta vs. Narender Kumar Gupta,

(2010) 10 SCC 141, observing as follows:­

“27. The Code of Civil Procedure is nothing but an exhaustive compilation­cum­enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are no short­cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.

……….

30. But where the summons have been issued for settlement of issues, and a suit is listed for consideration of a preliminary issue, the court cannot make a roving enquiry into the alleged conduct of the plaintiff, tenability of the claim, the strength and validity and contents of documents, without a trial and on that basis dismiss a suit. A suit cannot be short­circuited by deciding issues of fact merely on pleadings and documents produced without a trial.

31. In this case, the learned Single Judge has adjudicated and decided questions of fact and

25 rendered a judgment, without evidence tested by cross­examination….”

25. The Division Bench ought to have confined itself to

examination of the validity of the order of injunction granted

by the learned Single Judge only. But we are not inclined to

remand the matter for that purpose to the Division Bench as

we are satisfied in the facts and circumstances of the case

that the nature of the injunctive relief granted by the Single

Judge was in order and merits no interference during the

pendency of the suit.

26. The order of the Division Bench is set aside. The order

of the Single Judge dated 28.03.2017 is restored and the suit

is remanded to the learned Single Judge for disposal in

accordance with law. In view of the importance of the

question involved, we expect the parties to cooperate and

facilitate the learned Single Judge in early disposal of the

suit.

26

27. The appeals and the intervention applications stand

disposed of.

…………............................J. [ROHINTON FALI NARIMAN]

…………............................J. [NAVIN SINHA]

NEW DELHI JANUARY 08, 2019.

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