[Cites 7, Cited by 0]
Calcutta High Court
Jay Baba Bakreswar Rice Mill Private ... vs Deepak Kumar Barnwal on 13 February, 2026
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE 2026:CHC-OS:62
(Intellectual Property Rights Division)
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
IP-COM/59/2024
[OLD NO C.S /148/2023]
IA NO: GA-COM/5/2025
JAY BABA BAKRESWAR RICE MILL PRIVATE LIMITED
VS
DEEPAK KUMAR BARNWAL
For the Petitioner :Mr. Sourojit Dasgupta, Adv.
Ms. Sanchari Chakroborty, Adv.
Ms. Tanishka Khandelwal, Adv.
Heard on :13.02.2026
Judgment on :13.02.2026
Ravi Krishan Kapur, J.:
1. This is a suit for infringement and passing off. The application has been
filed under Order VIII Rule 10 of the Code of Civil Procedure.
2. Despite repeated service, the respondent remains unrepresented.
3. Though the respondent appeared at the interlocutory stage, the
respondent has neither entered appearance in the Suit nor filed any
Written Statement.
4. The petitioner is engaged in the business of manufacture and sale of rice
and similar products. It is alleged that since year 1998, the petitioner
had adopted a label mark "SWASTIK". The products of the petitioner are
being sold under the package containing the label "SWASTIK"
continuously and uninterruptedly since 1998. The petitioner also boasts
of extensive sales in respect of the said product bearing the mark
2026:CHC-OS:62
"SWASTIK".
5. The petitioner is also enjoying registrations in respect of the label mark
"SWASTIK" in various stylized manners. Significantly, the registration
being enjoyed by the petitioner contains a disclaimer i.e. registration of
the trademark shall give no right to the exclusive use of device of
"SWASTIK" and all other descriptive matters. The plaintiff has also
obtained copyright registrations over the artistic work in respect of the
above mark. The details of such registration are fully enumerated both
in the plaint and petition.
6. In or about June 2023, the petitioner came across the respondent's
product bearing the mark "SWASTIK" with the only additional word 'New'
written insignificantly over the impugned mark.
7. For convenience, the rival marks are set out herein below;
PETITIONER'SMARK RESPONDENT'SMARK
8. It is also alleged that though the respondent had applied for registration
of the mark New "SWASTIK" on a proposed to be used basis, such
registration has been refused.
9. Upon the filing of this suit, by an order dated 14th August, 2023, this
2026:CHC-OS:62
Court had at an ad interim stage granted an order of injunction
restraining the respondent from using the impugned packaging and label.
Ultimately, the ad interim order was confirmed on February 19, 2024.
10. On a bare perusal of the two marks, the same appear to be identical to
each other. The packaging of the respondent's product is strikingly
similar and deceptively identical to that of the petitioner's packaging.
The petitioner is also the prior user of the mark and has been using the
same since 1998.
11. In Laxmikant V. Patel v. Chetanbhai Shah, reported in (2002) 3 SCC 65 it
has been held as follows:
"10. A person may sell his goods or deliver his services such as in case of
aprofession under a trading name or style. With the lapse of time
suchbusiness or services associated with a person acquire a reputation
orgoodwill which becomes a property which is protected by courts. Acompetitor
initiating sale of goods or services in the same name or byimitating that name
results in injury to the business of one who has theproperty in that name. The
law does not permit any one to carry on hisbusiness in such a way as would
persuade the customers or clients inbelieving that the goods or services
belonging to someone else are his orare associated therewith. It does not
matter whether the latter person doesso fraudulently or otherwise. The
reasons are two. Firstly, honesty andfair play are, and ought to be, the basic
policies in the world of business.Secondly, when a person adopts or intends to
adopt a name in connectionwith his business or services which already
belongs to someone else itresults in confusion and has propensity of diverting
the customers andclients of someone else to himself and thereby resulting in
injury."
12. Order VIII Rule 10 of the Code of Civil Procedure 1908 provides as
follows;
Where any party from whom a written statement is required under rule 1 or
rule 9 fails to present the same within the time permitted or fixed by the Court,
as the case may be, the Court shall pronounce judgment against him, or make
such order in relation to the suit as it thinks fit and on the pronouncement of
such judgment a decree shall be drawn up:
Provided further that no Court shall make an order to extend the time provided
under Rule 1 of this Order for filing of the written statement.
13. In Aisha Bi Vs. M. Shamsher Khan ILR 2001 Kar 546, it has been held2026:CHC-OS:62
as
follows:
"12...A reading of Rule 5(2) and Rule 10 of Order VIII of the CPC and the law
laid down by the Supreme Court in Balraj Taneja's (supra), it is now clear
that even if the defendant does not file his written statement, it is incumbent
upon the Trial Court to apply itself to the facts pleaded by the plaintiff and
come to its own conclusion that even if the facts as stated in the plaint are
taken as true, it does not create any inbuilt inconsistency on facts requiring
the same to be proved by the plaintiff by adducing evidence. In case, the Court,
after going through plaint, finds that the facts disclosed therein gives rise to
two versions of the foundational facts on which the relief ought to be based,
then it will be necessary for the Court to direct the plaintiff to lead evidence so
that on appreciation thereof the Court can ascertain the correct facts and
thereupon either decree or dismiss the suit. But, if the Court finds that the
facts pleaded are consistent and forms good basis for awarding the relief
claimed, then the Court is required to decree the suit on the basis of the facts
pleaded in the plaint, since in absence of written statement filed by the
defendant controverting any of those facts, the same has to be taken as
admitted.
13. Accordingly, we clarify here that in all cases where no written statement
has been filed by the defendants, it is neither necessary nor appropriate to
direct the plaintiff to adduce evidence in support of the facts pleaded by him in
an indiscriminate manner. The Court has to pronounce the judgment and
decree the suit if the facts pleaded does not admit of any in-built inconsistency
giving rise to two different versions of the foundational facts. But even for
doing so, the Court has to pass the judgment containing the relevant facts and
the reasons for granting the relief."
14. Similar views have also been expressed in(a) Kaira District Cooperative
Milk Producers Union Ltd. and Another v Maa Tara Trading Co. and
Others (2022 SCC OnLine Cal 2516), (b) Devans Modern Breweries Ltd. v
Mount Everest Breweries Ltd. and Another (2022 SCC OnLine Cal 3514),
(c) Shyam Sel and Power Limited v Atibir Industries Company Limited
(2023 SCC OnLine Cal 3781)and (d) SRMB Srijan Private Limited v Uma
Shankar Jaiswal (2024 SCC OnLine Cal 6157).
15. In view of the above uncontroverted facts pleaded and satisfactorily
proved, the petitioner is entitled to an order under Order VIII Rule 10 of
the Code of Civil Procedure, 1908.
16. In view of the strong prima facie case, balance of convenience 2026:CHC-OS:62
in
irreparable injury the petitioner is entitled to protective reliefs.
17. In such circumstances, the suit is decreed in terms of prayers (a), (b), (d)
and (e) of the plaint.
(RAVI KRISHAN KAPUR, J.)
SK.
