Mumbai: The Bombay High Court has held that a civil suit cannot be filed merely on the basis of an apprehension that legal action might be initiated in the future.
Justice Abhay Ahuja made the observation while dismissing a suit filed by pharmaceutical company Cadila Healthcare Ltd against Roche (India) Private Ltd, seeking to preemptively block any interference with the marketing of its cancer drug, Vivitra.
“A suit cannot be filed on the basis of an apprehension that legal proceedings would be initiated in future. In any event, the plaint does not indicate any cause of action that there will be defendants’ interference with the launch and marketing of the similar drug,” the Court noted.
Cadila had filed the suit in 2015, just before launching Vivitra, a biosimilar to Trastuzumab — originally developed by Genentech Inc. and marketed in India by Roche. The company feared Roche would initiate legal proceedings, as it had allegedly done against other biosimilar manufacturers.
Cadila argued that since Roche’s formulation patent had expired in 2013, it had no enforceable rights left and any potential litigation would only be an attempt to stifle competition and maintain a monopoly.
The suit sought a declaration of Cadila’s right to market Vivitra and an injunction restraining Roche from interfering.
Roche, however, contended that the suit was legally unsustainable as it sought to restrain possible future litigation. Relying on Section 41(b) of the Specific Relief Act, Roche’s counsel argued that courts cannot prevent a party from initiating legal proceedings in courts not subordinate to it.
“The plaint merely gives an impression of cause without substance creating an illusion of cause of action and does not really disclose any cause of action,” the Court observed, accepting Roche’s submission that Cadila had been selling Vivitra since 2015 without any interference.
Stating that the entire suit rested on a “mere apprehension,” the Court said, “If none of the remedies sought in the plaint can be granted, and the suit itself is based only on an apprehension that no longer exists… then the case does not reveal a valid cause of action.”
