Calcutta High Court
Jay Baba Bakreswar Rice Mill Private ... vs Deepak Kumar Barnwal on 9 June, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
OIP-9
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Intellectual Property Rights Division)
IP-COM/59/2024
[OLD NO CS/148/2023]
IA NO: GA-COM/4/2025
JAY BABA BAKRESWAR RICE MILL PRIVATE LIMITED
VS
DEEPAK KUMAR BARNWAL
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 9th June, 2025.
Appearance:
Mr. Sourajit Dasgupta, Adv.
Ms. Sanchari Chakraborty, Adv.
Ms. Tanishka Khandelwel, Adv.
...for the petitioner
The Court:
GA-COM/4/2025
This is an application for summary judgment.
Despite repeated opportunities, the respondent remains unrepresented.
The petitioner is inter alia engaged in the business of dealing with rice
and allied products. The petitioner had originally been carrying on business
under the name and style of Jai Baba Bakreswar Rice Mill a sole proprietorship
concern of one Dip Chand Khaitan.
Subsequently, in or about, 2001 the proprietorship business of the said
Dip Chand Khaitan was taken over by the petitioner company. During the
course of business, the petitioner has conceived and adopted the trademark
"Swastik Brand" for the purpose of dealing in rice. It is further alleged that the
rice sold by the petitioner is of premium and high quality under the mark
"Swastik Brand".
In this background, the petitioner has also applied for registration of the
mark "Swastik Brand" having a distinctive colour scheme and getup claiming
user since 31st July, 1998. The petitioner has also obtained registration of the
artistic work "Swastik Brand" under the Copyright Act 1957. In such
circumstances, the petitioner claims exclusivity and seeks protection of its
intellectual property rights.
In or about June 2023, the petitioner came across the respondent's rice
being sold under the mark "Swastik Brand". The petitioner complains of
deceptively similar packaging and the entire placement of the rice bowl, writing
style, font and placement of the word "Swastik" as well as the term "premium
quality silky sortex" which is identical that of the petitioner.
In this background, the petitioner seeks a summary judgment under
Order XIIIA of the Code of Civil Procedure 1908.
Upon a perusal of the plaint, it appears that the registration certificate
issued in favour of the petitioner contains a disclaimer i.e. "Registration of this
trade mark shall give no right to the exclusive use of device of 'Swastik' and all
other descriptive matter".
This certificate is not annexed to this application. A reading of the above
condition would obviously suggest that the registration in favour of the
petitioner gives no right to the exclusive use of the device "Swastik" and or any
other descriptive matter. There is a clear embargo on the petitioner claiming
any exclusivity or proprietorship right insofar as the device "Swastik" and all
other descriptive matters are concerned.
The suppression and non-disclosure of this document in this application
goes to the root of the entire claim of the petitioner. Significantly, the above
disclaimer is not pleaded in the plaint nor does it find any mention in any of
the interim orders obtained by the petitioner. As a general principle,
suppression of a material fact by a litigant disqualifies such litigant from
obtaining any relief. This rule has been evolved out of the need of the Courts to
deter a litigant from abusing the process of Court by deceiving it. [S.J.S.
Business Enterprises (P) Ltd. vs. State of Bihar (2004) 7 SCC 166].
In view of the above the instant application is an abuse of process. There
has been material concealment by the plaintiff in filing this application. In such
circumstances, GA-COM/4/2025 stands dismissed.
Let this suit appear under the heading "Case Management Hearing of
Suit" on 24th June, 2025.
(RAVI KRISHAN KAPUR, J.)
S.Bag
