Allahabad High Court: In a batch of two appeals filed under Section 13 (1-A) of the Commercial Courts Act, 2015 (‘CC Act’) against the order passed by Commercial Court restraining the appellants from reproducing or using in any manner the copyrighted Product Dossiers of the defendant in relation to certain products, the Division Bench of Arun Bhansali, CJ., and Kshitij Shailendra*, J., dismissed the appeals holding that the findings recorded by the Commercial Court were not perverse as the appellants did commit copyright infringement.
Background
The defendant, Jubilant Generics Ltd. (‘Jubilant’), a transferee of the pharmaceutical business from Jubilant Life Sciences Limited, and developed Product Dossiers for a range of its products. These Dossiers allegedly contained highly sensitive, original, and technical data necessary for obtaining regulatory approvals and manufacturing processes. As per Jubilant, they qualified as ‘literary works’ under Section 2(o) of the Copyright Act, 1957(‘Copyright Act’), and were duly protected.
Jubilant entered into non-exclusive License Supply and Distribution Agreements with Jamp Pharma Corporation, Canada (‘Jamp Canada’), parent entity of appellant 1, Jamp India Pharmaceuticals Private Limited (‘Jamp India’), thereby permitting Jamp Canada to register, manufacture, market, distribute, and sell the products in the territory of Canada using such Product Dossiers in Canada.
Appellant 2, V S International Private Limited (‘VS International’), the Indian offshoot and subsidiary of a Canadian privately-owned pharmaceuticals corporation, Jamp Pharma Corporation (‘Jamp Pharma’). Jamp Pharma approached Jubilant, representing itself as a leading supplier of generic product formulation in Canada. The parties agreed that Jubilant would license to Jamp Pharma, a copy of each of its Product Dossiers for the aforesaid products, including all bio-studies, improvements to the molecules, changes made pursuant to any requirement of Health Canada and that Jamp Pharma would acquire a fully paid-up, perpetual, royalty free license and right to manufacture, distribute and sell the products in the territory of Canada using such Product Dossiers containing the technology.
A dispute arose between Jubilant and Jamp Pharma that led Jamp Pharma to invoke arbitration proceedings. In 2024, the Senior Vice President Global Portfolio & Scientific Affairs of Jamp Pharma filed an affidavit in the arbitration proceedings categorically admitting that Jamp Pharma transferred the technology contained in the said Product Dossiers to VS International. The Commercial Suit was allegedly filed upon such discovery and subsequent investigations, which revealed that the appellants were using Jubilant’s proprietary and confidential Dossiers to manufacture pharmaceutical products in India.
The Commercial Court granted an ex parte ad interim injunction in favour of Jubilant.
Jamp India and VS International contended that the products were being manufactured in India by them pursuant to a fully paid-up, perpetual, royalty-free, transferable, non-exclusive licence in favour of Jamp Pharma. Further, the issue of alleged infringement had already been raised by Jubilant before an Arbitral Tribunal, and the dispute was purely contractual, not a copyright infringement dispute, and, therefore, it ought to be referred to arbitration as provided under the licence agreements.
The Commercial Court, while granting an interim injunction, observed that the Product Dossiers were extensive compilations covering the complete life cycle of pharmaceutical formulations, involving judgment, research, and analysis. Thus, Jubilant’s claim to copyright was substantive and akin to a right in law, not displaced by any evidence presented by Jamp India and others. The Court stated that a mutual confidentiality and non-disclosure agreement of 2010 and subsequent non-exclusive licensing agreements with Jamp Canada lend support to Jubilant’s ownership of the Dossiers.
The Court further analysed the Agreements between Jubilant and Jamp Canada and concluded that the rights granted to Jamp Canada were territorially confined to Canada. The right to register, manufacture, market, and distribute was held to be limited to the Canadian territory, and even the post-termination right to manufacture and sell was restricted to Canada alone. The Court held that the said products could not be manufactured in India under the terms of the agreement. It further recorded that the Indian manufacturers were not parties to the Agreements or arbitral proceedings between Jubilant and Jamp Canada, thereby underscoring Jubilant’s claim that the Dossiers were being exploited in India without any authority.
Analysis
At the outset, the Court reiterated that at the stage of considering an application for temporary injunction, a ‘mini trial’ of the suit itself is not to be conducted; rather, the adjudication is made based upon three basic ingredients, i.e., prima facie case, balance of convenience, and irreparable loss.
1. Composite Suit and Plea of Lack of Jurisdiction
Regarding the issue of jurisdiction, the Court referred to Sections 2(o), 14 (a) and (b), 51, and 62 of the Copyright Act as well as several landmark decisions. The Court stated that undisputedly, Jubilant was situated in Noida, and merely because the appellants were located in Karnataka, Maharashtra, New Delhi, and Gujarat, their locations would not take away the territorial jurisdiction from the Commercial Court, Gautam Budh Nagar. This is because Jubilant, by virtue of Section 62(2) of the Copyright Act, was not supposed to chase all infringers of the copyright wherever they commit such infringement. It cannot be the intention of the law to institute multiple suits at every such place where such infringement occurs. That is why the legislature, in its wisdom, has protected the interest of the plaintiff to institute the suit at his place.
Reading this aspect with Section 20(c) of Code of Civil Procedure, 1908 (‘CPC’), the Court found that the cause of action, wholly or in part, had arisen within the territory of Gautam Budh Nagar because apart from the admitted fact that the Product Dossiers were prepared by the Jubilant in Noida, the Jamp and others were actively promoting their products at Gautam Budh Nagar. Furthermore, Jamp India participated in the 10th Edition of the International Pharmaceutical Exhibition (iPHEX), 2024, held at Greater Noida, and distributed brochures advertising Amlodipine, one of the three contested pharmaceutical products, which were manufactured based on the Product Dossiers. When Jubilant’s authorised representative visited Jamp India’s stall during the said exhibition, they obtained brochures wherein the said products were expressly advertised.
The Court held that these acts reflected that infringement and commercial promotion of the products took place within the territorial jurisdiction of the Commercial Court, thereby conferring jurisdiction upon it to entertain and adjudicate the present proceedings.
The Court opined that the phrase ‘composite suit’ had been wrongly stretched by the appellants to contend as if there were multiple causes of action alleged by Jubilant. A combined reading of the provisions, along with the plaint averments, clarified that the suit was not composite. If at all, it could be said to be a composite suit, the same was maintainable as no combination of two or more acts or reliefs claimed therein had arisen in the present case.
The Court stated that the present suit was primarily for copyright infringement, arising from the unauthorized use and exploitation of Jubilant’s Product Dossiers. The fact that the plaint also seeks ancillary and/or incidental reliefs in respect of breach of confidentiality and misuse of trade secrets did not take away its essential and predominant character as a copyright infringement suit. Further, the Court stated that Section 20(c) of CPC also stood attracted in favour of Jubilant as the cause of action, wholly or in part, arose within the territory of Gautam Budh Nagar.
Furthermore, the Court opined that copyright was a bundle of exclusive rights conferred under Section 14 of the Copyright Act, and the element of confidentiality embedded in a literary work, such as Jubilant’s Product Dossiers, was merely one facet. It was entirely within the prerogative of the copyright owner, i.e., Jubilant, to determine whether to disclose or share such confidential information that is vested in the copyright.
Accordingly, the Court held that the relief concerning confidentiality was neither founded separately nor gave rise to an independent cause of action, but flowed directly from Jubilant’s copyright in the Product Dossiers. Thus, the Court rejected the contentions regarding the maintainability of a composite suit or the Commercial Court having no jurisdiction, either inherent or territorial.
“Once copyright infringement is the core relief, incidental or ancillary reliefs, whether based on confidentiality, trade secrets, or passing off, do not affect maintainability of the suit as a whole.”
2. Agreement(s), Their Salient Features and Permissibility of Activities Thereunder
The Court noted that the appellants contended that since activity was being done by Jamp Pharma under some licence agreements and the said agreements had expired by efflux of time, Jamp Pharma was free to ‘manufacture’, ‘market’ and ‘sell’ the products. A contrary plea was taken in the same paragraph that Jamp Pharma had acquired a perpetual licence over the Product Dossiers under the licence agreements and was, therefore, fully entitled to tech transfer the Product Dossiers to any manufacturer for the purposes of manufacturing the products for the Canadian market.
Noting the aforesaid, the Court stated that these pleas based upon alleged rights flowing from licence agreements were mutually destructive and inconsistent. The Court stated that it was not inclined to read either contention in favour of the appellants, since no clause was found in the agreements which could authorize Jamp Pharma to transfer either the licence or the technology for manufacturing, marketing, and selling the products ‘outside the territory of Canada’. Rather, the agreements contained stipulations that prohibited the violation of rights conferred under the agreements even after their expiry.
The Court found that wherever the appellants attempted to assume or vest rights qua the products in themselves, they intentionally omitted the significance of the word ‘territory’, which, in explicit terms, was defined as the ‘whole of Canada’. The agreements specifically restricted the activities to the Canadian territory. Under clause 1.4 of the Agreement, except to the extent granted, all rights to the intellectual property were retained by Jubilant.
Thus, the Court held that, irrespective of the appellants not being party to the agreements, their impugned acts were contrary to the terms of the agreements entered into between Jamp Canada and Jubilant. Hence, they were not entitled to take the shield of either not being party to the agreements or otherwise arising out of the expiry of agreements by efflux of time and its effect. Their actions fell within the meaning of ‘copyright infringement’.’
3. Whether Arbitration Proceedings in Canada Render the Suit Proceedings as Not Maintainable
The Court rejected the argument that the appellants had never contended or intended for referring the dispute to the Arbitral Tribunal, since their very case contained in the objections filed against the injunction application and the application seeking vacation of ex-parte ad-interim injunction, was that they not only emphatically asserted that the dispute raised by means of the suit was covered by arbitral clause contained in the agreements, but also raised a plea that it ought to be referred for arbitration. Further, in para 7 of the vacation application, it was stated in explicit terms that ‘the defendant reserves its right to make an appropriate application for referring the issues raised in the present commercial suit to arbitration, under the said licence agreements’.
Further, the Court stated that a bare perusal of the record of arbitration proceedings revealed that the dispute raised in the suit giving rise to these appeals was not covered by the issues being considered by the Arbitral Tribunal in Canada. Even the preliminary issue of the use of the Product Dossiers did not form part of the arbitration proceedings, which was reflected in Jamp Pharma’s response in the matter.
The Court agreed with Jubilant’s contentions based upon the ratio in the case of Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 and Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 that the disputes relating to rights in rem are non-arbitrable, as such rights require adjudication by the public for exercising sovereign judicial powers.
Thus, the Court rejected the contentions that pendency of the arbitration proceedings in Canada would render institution of a commercial suit as not maintainable or that the claim for injunction could not be considered by the Commercial Court.
4. Whether the Emails of 2021 Would Defeat the Claim for Injunction on the Touchstone of Section 12-A of the CC Act
The Court noted that the suit in question was filed by Jubilant on 23-08-2024 before the Commercial Court along with an application seeking exemption from pre-institution mediation. The Commercial Court granted an exemption from pre-institution mediation and, by allowing the application under Section 12-A of the CC Act, it directed registration of the suit as an original suit. This order was passed on 23-08-2024, and on the same day, the Commercial Court granted an ex parte ad-interim injunction. The order dated 23-08-2024 remained unchallenged through any separate proceedings, though submissions have been made in the present appeals that the requirement of pre-institution mediation was wrongly dispensed with.
The Court observed that whenever a suit is instituted before a Commercial Court and it contemplates an urgent interim relief, the Commercial Court is required to apply its mind as to whether such a grant is necessary and whether the requirement of pre-institution mediation under Section 12-A of the CC Act should be dispensed with. Once the Commercial Court, after due consideration of the frame and nature of the suit and claim for urgent interim relief, dispenses with the requirement of pre-institution mediation and registers the case, the jurisdiction so exercised cannot normally be interfered with at a later stage when the suit or the injunction application is contested by the defendants. Even in a case where the suit is registered after dispensing with the requirement of pre-institution mediation and simply notices are issued to the defendants on the application seeking an interim injunction, the registration of the suit and dispensation of the requirement of pre-institution mediation cannot normally be interfered with later on.
The Court further stated that in a given case, if, at the instance of the defendants, the order granting ex parte interim injunction is sought to be vacated, the legislative scheme of the CC Act read with the provisions of CPC did not provide for a mechanism to undo the dispensation of requirement under Section 12-A. There may be a case where, on facts being brought to the notice of the Commercial Court by the defendants, a belated claim for injunction may be taken as a justifiable reason to vacate the ad-interim injunction but, in absence of any provision, either in CC Act or in CPC, providing recall/setting aside of the initial order dispensing with requirement of pre-institution mediation, it is not open for the Commercial Court to recall/set aside the said order. The Court remarked that “Such exercise, if done, will push back the matter to its initial stage, leading the litigants to nowhere. Legislative intent and the procedure of law have to be understood and applied in a pragmatic manner and not in a way that frustrates the very purpose of law.”
Given the aforesaid, the Court held that the Commercial Court had not erred in adopting the procedure. The Court remarked that after all, it was a suit for infringement of intellectual property rights in which an urgent interim relief was prayed for, and the Court should focus on the legislative intent and distinction between words ‘entitlement’ to urgent interim relief and ‘contemplation’ of urgent interim relief.
Regarding the emails, the Court stated that they were exchanged between the representatives of the Appellants and dealt with or referred to consignments relating to the citalopram products. The Court held that these emails, in themselves, could not be treated as fatal to Jubilant’s case for infringement of copyright in the Product Dossier. The emails nowhere mentioned or disclosed any use of the intellectual property rights vested in the Product Dossiers. The cause of action to institute arose only upon the admission made by Jamp Canada’s Senior Vice President in the arbitration proceedings in 2024. After such admission, Jubilant contended, various discoveries were made, and the revealing of emails is also one of such discoveries.
The Court reiterated that the cause of action to institute a suit is always a bundle of facts, and the Court is competent to understand the entire nature of the dispute and chronology of the events giving rise to the institution of suit. One or the other documents, having no direct link or having a weak link with the dispute raised, cannot form the basis of non-suiting a plaintiff.
Therefore, the Court held that the evidence established vested rights of Jubilant in the Product Dossiers as the appellants were unable to justify their acts of manufacturing and selling the products using the Product Dossiers of the plaintiff in India. Thus, the contention was also discarded.
Decision
The Court dismissed both appeals, holding the following:
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The Commercial Court did not err in dispensing with the requirement of pre-institution mediation under Section 12-A of the CC Act.
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The relief of injunction being discretionary and conduct of parties being of significance, Jubilant successfully established its prima facie case resting upon its ownership of original Product Dossiers for the pharmaceutical drugs/products, i.e., Losartan, Amlodipine, and Citalopram.
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The Dossiers constituted and were protectable as original ‘literary works’ under the Copyright Act. These Dossiers were shared by Jubilant with Jamp Canada under strict confidentiality and territorial limitations, but in violation of such restrictions, Jamp Canada transferred the Dossiers to its Indian subsidiary, VS Engineering, which, in turn, wrongfully facilitated their use by Jamp India and two others for manufacturing and use in India.
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The appellants, i.e., Jamp India and VS International failed to justify their acts of ‘manufacturing’, ‘marketing’ and ‘selling’ the products by using Jubilant’s Product Dossiers in India and their attempt to interpret the terms of agreements and consequences arising therefrom, established their dishonest intention to infringe copyrights in ‘literary work’ in the form of Product Dossiers of Jubilant.
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Based upon the discussion made in this judgment, the remaining two ingredients, i.e., balance of convenience and irreparable loss, also stand established in favour of Jubilant.
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Arbitration proceedings pending between the parties to the agreement(s) in Canada were not an impediment either in the institution of the suit or the consideration of the injunction application.
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The Commercial Court at Gautam Budh Nagar had territorial and inherent jurisdiction to entertain the suit.
[Jamp India Pharmaceuticals Private Limited v. Jubilant Generics Ltd., Commercial Appeal No. 14 of 2025, decided on 15-10-2025]
*Judgment authored by: Justice Kshitij Shailendra
Advocates who appeared in this case:
For the appellants: Senior Advocate Shashi Nandan and Advocates Hiren Kamod, Devansh Misra, Raghuvansh Misra, Anup Shukla, Raghav Dev Garg, Ankoosh Mehta, Advait Shukla, and Yashvi Agarwal
For the respondents: Rahul Agarwal, Nithin Sharma, Ankit Prakash, and Paritosh Joshi