G.S Patel, J.:— In this matter, following the previous order dated 22nd March 2016, summonses were served on Defendants Nos. 2 to 5. Mr. Chandnani appears for them today. He says, however, that he has had no time to take instructions. I find that Defendant No. 2, Mr. Sudheer Singh, and Defendant No. 3, one ‘Dr.’ Ranvir Kumar Bindeshwari Singh are present in Court.
2. As I will presently note, the conduct in Court today of both these persons leaves much to be desired; and that is a very considerable understatement. I find it difficult to believe a single word these gentlemen say. The materials on record, some of which have been tendered by Mr. Chandnani across the Bar, inspire no confidence. They have instead resorted to denials both bald and bold of documents annexed by the Plaintiffs to the plaint and to a substantial further Additional Affidavit dated 22 March 2016.
3. The cause for immediate concern is not, I am at some pains to emphasize, the commercial or intellectual property rights of the Plaintiffs. At this stage, all this is entirely secondary, whether Dr. Saraf for the Plaintiffs agrees with me or not. What is at stake is an issue of public health, and safety and lives of critically ill cancer and brain tumour patients. We are concerned here with a complex pharmaceutical preparation. This is known as a Carmustine injection. As I have noted in earlier orders, it is required to be stored in special conditions. The items are gel-packed and must be maintained in temperatures between 20 c to 8c. At temperatures above this, they degrade rapidly. These injections are packed with what is called a diluent. The injection is to be administered in conjunction with the diluent. It is prescribed and used for patients who are critically ill with certain types of cancer, lymphomas and brain tumours. Wrongly administered, they are known to result in almost certain fatalities. There are others apart from the Plaintiffs who manufacture some variant of Carmustine. The Plaintiffs' version under the mark BICNU is sold in foreign markets (and in those alone). Another mark is used for different formulations for domestic use in India.
4. The Defendants are charged with sending out to overseas hospitals completely counterfeit and illicit versions of these BICNU-branded products. They deny this.
5. One of the Plaintiffs' regular customers is an Israel-based company called Raz Pharmaceuticals. As I have noted before, the Plaintiffs manufacture their product with a proprietary process that is a guarded secret and sensitve. They use the mark BICNU in relation to this particular product which is sent out and exported overseas. BICNU products are not distributed within India. Here, an equivalent under a different brand is made available instead. The BICNU preparation is under a license from international pharmaceutical major, BMS.
6. The documents annexed to the plaint indicate that the Defendant No. 1, which is under the control of Defendants Nos. 2 to 5 and what appears to be its sister concern in Dublin, Ireland, one Taj Accura, appear prima facie to have supplied Raz Pharmaceutical in Israel with BICNU-branded products. This is denied by both Mr. Sudheer Singh and ‘Dr.’ Ranvir Kumar Bindeshwari Singh, Defendants Nos. 2 and 3 in Court today.
7. I cannot understand these denials. They are contrary to the documents on record. There are photographs of the product that were supplied to Raz Pharmaceuticals. I refer in particular to the document at page 97 of the plaint dated 25th January 2016 from Taj Accura Pharmaceuticals in Ireland; invoices at pages 99 and 100; a Certificate of Analysis at page 102A again from Taj Accura which specifically mentions BICNU; other Certificates of Analysis at pages 101B, 101C and 101D; a stability declaration at page 103 which again mentions BICNU; emails at pages 104 to 107 from the same email address for the 1st Defendant as is to be found on their website, extracts of which are at pages 110-111; and another stability declaration at page 128. In the stability declarations, a single batch number is used, the name of the Plaintiffs is shown and the brand BICNU is shown. These batch numbers do not match any production batch numbers of the Plaintiffs.
8. It is curious that although the Defendants claim not to have purchased any goods from the Plaintiffs, and the Plaintiffs have no record of any sales to the 1 Defendant, there are to be found these certificates of analysis and invoices from the 1 Defendant mentioning the BICNU brand. As I said, these insouciant denials are unconvincing.
9. I find that there is no reply as yet to explain these emails between Taj Accura and Raz Pharmaceuticals. These emails show that Raz Pharmaceuticals made an enquiry with the 1 Defendant for Carmustine injections, and that the 1 Defendant specifically offered to supply BICNU-branded Carmustine injection chemotherapy drugs (page 105). These emails from the 1 Defendant specifically mention the Plaintiffs' name. Even more peculiar is another email at page 106 where the 1 Defendant clearly offers to supply BICNU-branded injections. Another, similar, email is to be found at page 107.
10. The Additional Affidavit dated 22 March 2016 also makes for very curious reading. Pursuant to my previous orders, the Court Receiver visited various sites and locations said to belong to the Defendants. What was found was that all these locations were either shut or in disuse. These locations include one at Village Kalgam, District Valsad, Gujarat, another in Taluka Khalapur, District Raigad and third at GIDC Road No. 3, Village Sarigam, District Valsad. There is also supposedly an address at Oshiwara Industrial Center, Link Road, Goregaon (West), Mumbai 400 104. When the Receiver and his officers visited that site, they were told that the Directors were not at that location but were instead at a location at 434, Laxmi Plaza, Laxmi Industrial Estate, New Link Road, Andheri (West), Mumbai - 400 053. This was reported to the Court Receiver in mid-March 2016.
11. From pages 49 to 54 of the Additional Affidavit is a print out of various pages of the 1 Defendant's website. At page 58 is a list of various drugs in which the 1 Defendant supposedly deals. All manner of exceedingly tall claims are made on the intervening pages. For example at page 51 one of the assertions made is that the 1 Defendant has a world-class finished dosage manufacturing facility at Village Kalgam, District Valsad. Then there is an assertion by Defendant No. 3 accompanied by his photograph at page 54 that apparently discloses the corporate philosophy of Defendant No. 1, expressed thus: “We Care”. Nothing seems farther from the truth. There are claims by the 1 Defendant to have units at Berlin Canada, Dubai, Malaysia, Mauritius, Mexico, Moscow and Switzerland. Of any of these there is no evidence whatsoever and it seems to me extremely unlikely from what I told in Court today that there is any basis for this at all. I am also entirely uncertain about the claims made at page 58 of the 1 Defendant having some sort of rights over a wide range of drugs some of which prima facie appear to be prescribed in serious conditions.
12. The addresses listed on the website and to which I have earlier referred also says that Khalapur factory is US FDA approved and that the Village Kalgam, Valsad District factory has approval from WHO and UKMHRA.
13. Before me in Court, ‘Dr.’ Singh, the same gentleman whose photograph is to be found at page 54 and who has apparently impressed upon an unsuspecting world his corporate philosophy of much ‘caring’, informs me that all these statements are incorrect. The Village Kalgam factory is merely proposed. It is under construction or perhaps constructed. It is most emphatically not operational. The Khalapur unit is closed. The Village Sarigam GIDC unit is not functional. Not a single unit is operational. All these are statements that he instructs Mr. Chandnani to make across the Bar. There is very little in this website that is credible. I must note that apart from these ‘world class’ but non-existent facilities, the 1 Defendant claims to have units and a presence overseas, to be part of something called Taj Group and a turnover of approximately Euro 240 Million as far back as in 2006-2007.
14. What is then reported across the Bar is even strange. Mr. Chandnani tenders some unordered compilations of certain shipping documents. He says, on instructions, that the 1 Defendant had obtained a generic Carmustine injection from a manufacturing unit called Therdose Pharma Private Limited in Hyderabad. He says this is generic. Even that is wrong. The drug is branded and is “Carmustine for Injection USP 100 mg” under the brand name Carmuther-100. The invoice-cum-challan shown to me speaks of a single batch No. 0261115002. This batch was indeed apparently sent to Raz Pharmaceuticals and is reflected in a number of shipping documents, including a Certificate of Origin issued by the Indian Merchants Chamber on 10 March 2016. This is itself odd, for that the Certificate of Origin says that it was issued retrospectively. There is a reference in these shipping documents to a different batch No. 0261215004. The batch number and delivery invoice from Therdose Pharmaceutical, Hyderabad is also reflected. Therefore, what the Defendants seem to have done is sent out at least two batches obtained from Therdose Pharmaceuticals, Hyderabad. None of those explains, of course, the emails that are annexed to the plaint or, for that matter, how documents on the letterhead of the 1 Defendant come to mention the BICNU mark, the Plaintiff's name and totally different batch processing numbers.
15. On the previous occasion, Dr. Saraf showed me a side by side comparison of the rival products, i.e, the original product as manufactured by the Plaintiffs and the counterfeit product, photographs of which were sent to the Plaintiffs by Raz Pharmaceuticals. These had different packaging and batch numbers. The bar codes also did not match.
16. In short, there is almost nothing claimed by the Defendants that is in the least credible. Its claims on its websites are untrue by its own admission. It does not have world class facilities. It does not have a presence overseas. It almost certainly does not have any sort of turnover in euro, let alone a quarter of a billion euro. Its denials of having offered to sell BICNU-branded products to Raz Pharmaceuticals are prima facie incorrect. Of its so-called corporate philosophy, the less the said the better.
17. I have dealt with this at this length and in this detail in this matter because I have one overriding concern. That concern is not at present the commercial, financial or intellectual property interest of the Plaintiffs. It is a concern that relates to the public health and safety. Nothing that the Defendants told me today inspires any trust at all. Two batches of spurious BICNU-branded products were sent out to hospices in Switzerland and Israel. Their use was stopped in the nick of time; a catastrophe was narrowly averted. What is of moment today is the consequence of this trafficking in illicit drugs, especially in the export market. Dr. Saraf also draws my attention to the additional material at pages 136 and 138 of the plaint. This is public domain material by other pharmaceutical majors such as CIPLA alleging that this very 1 Defendant is manufacturing spurious and counterfeit products.
18. I asked the Defendants repeatedly in Court whether they are agreeable to stop all dealings in pharmaceutical products till the Notice of Motion is finally heard, i.e, till the Defendants have had an opportunity to file a consolidated Reply and the matter is further heard. I received only evasive answers. I was even willing to make an exception for any pharmaceutical products that were in shipment or under process. Neither Defendant No. 2 nor Defendant No. 3, both styling themselves as Directors of this Euro 234 Million company, and one of whom claims to have some sort of doctoral degree, can even spell out for me the names of the products that are allegedly in transit. They are also not able to tell me whether there is one product in transit or more than one, where this product is headed and what its possible use is. Indeed, it seems to me that at several stages the Court is being confronted with nothing but constant prevarication, duplicity and obstruction. When asked about their Corporate Office address and the address at Laxmi Industrial Estate, for instance, I am told that the landlord took forcible possession of the Laxmi Industrial Estate Office. Now if the landlord has indeed taken forcible possession, I am unable to understand how on the website of the Company that particular address is shown even today. Every statement on the website is at the very least dubious, if not downright false.
19. As an added precaution, I have asked Defendant No. 2, Mr. Sudheer Singh, to step into the witness box. He is administered oath. He produces his PAN card. His identity is verified. I have put several questions to him. With my permission, so has Dr. Saraf. None of these have to do with the rights claimed by the Plaintiffs. They are all directed to ascertaining what it is exactly the Defendants are up to. The transcript is appended to this order. If it is claimed that I have no power or authority to engage in any such examination, then that is almost certainly wrong. Where a Court is confronted with nothing but evasion and prevarication, it can take all reasonable steps to ascertain the facts.
20. At the end of the day, ours is not just a judicial body that coldly applies the law. It is a Court first and foremost of justice, one that concerns itself with the interest of society. Prima facie, the denials by the Defendants are not persuasive, and it seems that the Plaintiffs concern that a counterfeit version of a highly potent pharmaceutical product has been sent out overseas with the involvment of the Defendants. I find it utterly reprehensible that anyone should, in the chase of lucre, think nothing of putting at risk the health and lives of innocent patients. If the Defendants are unwilling to cooperate, especially when I was agreeable to allowing them some accommodation by permitting them to continue with routine exports already underway, then I can see or reason to extend them any further latitude.
21. In consequence, the following directions are issued, effective immediately.
(a) The Court Receiver, High Court, Bombay is appointed a Receiver of the 1 Defendant's Office at Oshiwara. He is to seal the Office till further orders. This is necessary to prevent the 1 Defendant and its Directors from attempting to conduct any further business from these premises;
(b) The Defendants are restrained with immediate effect and till further orders of this Court from in any manner dealing with, trading, exporting, handling, ordering, purchasing and selling in pharmaceutical product of any description whatsoever;
(c) A copy of this order is to be sent to the Registrar of Companies.
(d) The Defendants are directed to immediately suspend operation of their website till further orders of the Court and till the Court has had an opportunity to assess the correctness of the claims made on that website.
(e) As regards Therdose Pharmaceuticals Private Limited, Hyderabad, the Court Receiver will immediately write to that Company of this matter enclosing a copy of this order. Whether that Company then wants to continue dealing with the Defendants is for that Company to decide;
(f) The Plaintiff will write to Raz Pharmaceuticals and ask it to provide in writing a complete chronological statements of its dealings with the 1 Defendant. If possible this should be placed on Affidavit.
22. Mr. Chandnani prays for stay of operation of this order. The stay is refused.
23. At this stage, the witness has tendered certain original tax invoices. The originals are retained in Court. A photocopy of these with a list will be given to the witness duly authenticated by the Court Associate.
24. Now Mr. Chandnani requests that the order that I have passed earlier be deferred. I have made it clear to him that the anxiety is only that spurious drugs should not enter the market. On taking instructions from Defendant No. 2, Mr. Sudheer Singh, Mr. Chandnani makes a statement that till such time as the Notice of Motion is heard, and which he requests should be done expeditiously, the Defendants will not export any pharmaceutical preparation of any nature. This statement is accepted as an undertaking to the Court.
25. In view of this statement and undertaking, the previous directions in paragraphs (a), (c), (d) and (e) are withdrawn.
26. Affidavit in Reply by the Defendants to be filed and served on or before 12 April 2016. No further Affidavits without leave of the Court.
27. List the Notice of Motion for hearing and final disposal on the supplementary board on 20 April 2016.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 871 OF 2016
SUIT (L) NO. 230 OF 2016
Emcure Pharmaceuticals Limited.….Plaintiff
v.
Taj Pharmaceuticals Limited & 4 Ors.….Defendants
Dr. Birendra Saraf, a/w Pooja Kshirsagar, Monisha Bhangale, i/b ALMT Legal, for the Plaintiff.
Mr. Jaiwant S. Chandnani, for Defendants Nos. 2 to 5.
(Before G.S Patel, J.)
DATED: 30 March 2016
Name: Mr. Sudheer Singh s/o Thakur Singh
Age: 32 years
Occupation: Director
Address: 304, Chandan Gauri Apartment, Near Sahakar Nagar, Virar (East), District Thane.
Examination of Mr. Sudheer Singh, Defendant No. 2, ON S.A
1. To Court What are your educational qualifications?
Ans. I am a Bachelor of Sciences from Patna University in 2002.
2. To Court In what field was your degree?
Ans. Chemistry.
3. To Court Are you related to Defendant No. 3?
Ans. No.
4. To Court When did you start work with Defendant No. 1?
Ans. From 2004.
5. To Court What is your age today?
Ans. I am 32 years old.
6. To Court When were you appointed a Director of the Company?
Ans. In 2013.
7. To Court When you joined the company, what was your designation?
Ans. I was in the Purchase Department.
8. To Court How many employees does the 1 Defendant company have?
Ans. Six.
9. To Court Does that include you as well?
Ans. Yes.
10. To Court Can you please tell me which are the countries abroad in which the 1 Defendant has an office?
Ans. None.
11. To Court Are you conversant in English?
Ans. Not really.
12. To Court Can you list the products that your company is dealing with or exporting?
Ans. I cannot offer the names of these products. I will have to ask the person who handles export.
13. To Court Who is that person?
Ans. His name is Mr. Amit Kumar.
14. To Court Where does he sit?
Ans. At the Oshiwara address.
15. To Court Does the 1 Defendant have a laboratory overseas?
Ans. I am not aware of any such laboratory.
16. To Court Do you know a person named Mr. T.B.S Subrahmanyam?
Ans. I do not know him by name. I only the name of the Company.
17. To Court I take it that this would be your answer in respect of Mr. S. Ravi and A. Tanuja?
Ans. Yes.
18. To Court Do you know a lady named Ms. R. Shweta?
Ans. Yes, she is a Pharmacist in my office.
19. To Court Do you know a gentleman by name B. Rajiv?
Ans. Yes. He is staff.
20. To Court Who is Mr. M. Dipak?
Ans. He is also a pharmacist with the 1 Defendant.
21. To Court What does exactly Mr. B. Rajiv do?
Ans. He does paper work.
22. To Court Does he have any degree or qualifications in pharmaceutical, chemicals or chemical engineering?
Ans. No.
Further questions by Dr. Saraf.
23. Q. Do you know anything about Taj Accura Pharmaceuticals?
Ans. No.
24. Q. Shown one of the compilations tendered by the Defendants in Court today Can you explain how the name of Taj Accura Pharmaceutical in Dublin, Ireland appears on your document?
Ans. Taj Accura Pharmaceutical is a buyer and the consignee in this particular transaction Raz Pharmaceuticals of Israel.
25. Q. How long have you been dealing with Taj Accura Pharmaceuticals?
Ans. For about one year.
Witness volunteers: Taj Accura places orders on us and we supply to the consignee.
26. Q. What are your functions as a Director of the company?
Ans. I look after the business of ordering and despatch, as also production.
27. To Court What production?
Ans. By this I meant obtaining orders on production from other manufacturers.
28. To Court Therefore you do not carry out manufacturing yourself?
Ans. That is correct.
29. Q. Do you have any factory or manufacturing unit?
Ans. No.
30. Q. Do you have any permissions from WHO?
Ans. No. We have no such permissions.
31. Q. Do you have any approvals of any kind?
Ans. No.
32. Q. Do you have any approvals from the US FDA?
Ans. No.
33. To Court Shown page 50 of the Additional Affidavit. Where have the photographs at the foot of this page have been obtained from?
Ans. This is a photograph of the plant at Sarigam. It is not functional but it exists.
34. Q. What is the email ID used by your company?
Ans. tajgroup@tajpharma.com.
35. Q. How long has your Sarigam plant been closed?
Ans. It is closed for two years.
36. Q. Was it ever functional?
Ans. No.
37. To Court How many companies are in the Taj Group?
Ans. There are 18 companies in the Taj Group.
38. To Court Are they all operating from the Oshiwara premises?
Ans. Yes.
39. To Court When you file an Affidavit, will you be able to give us the list of these 18 companies?
Ans. Yes. I will do so.
40. To Court Do you know the email ID that is used by Mr. Amit Kumar?
Ans. His email ID is mumbai@tajpharma.com.
41. Q. What is your email ID?
Ans. I do not have an email ID?
42. To Court Does Mr. Amit Kumar have an email ID amit.kumar@tajpharma.com?
Ans. I am not sure. I do not know the individual IDs of various employees.
43. To Court Does the 1 Defendant has any other email ID of any other service provides such as rediff mail?
Ans. No.
Mr. Chandani says that he has no questions for the witness at this stage. He reserves his right to put questions at a later stage if necessary. He will certainly be given all latitude.
The witness indicates that he wishes to make a statement. Given the extraordinary circumstances of this afternoon, I will allow the witness to make that statement and record in verbatim.
Witness volunteers: I have received the papers only last evening at around 5.00 p.m I had no time to study them in detail or to give instructions to our Advocate Mr. Chandani. I do not deny that we have in the past purchased and sold a carmustine product. However, we have never dealt at any stage with the BICNU product at all. I seek time to put in a reply after having considered what has been stated in the plaint and in these various papers.
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