Delhi High Court
Induss Food Products & Equipments ... vs Shri Rani Sati Icecream Pvt. Ltd. on 2 September, 1999
Equivalent citations: 1999 VAD Delhi 509, 81 (1999) DLT 487
Author: V Sen
Bench: V Sen
ORDER
Vikramajit Sen, J.
1. This is a suit for permanent injunction and rendition of accounts. The contention between the two adversaries revolves around the use of trade mark ROLLICK and FROLLIK; the former is used by the Plaintiff and the latter by the Defendant. The pleadings were completed in April 1996 and thereafter detailed arguments were addressed before my learned brother Justice K. Ramamoorthy who, on December 12, 1996, delivered a detailed order whereby he restrained the Defendant, inter alia from manufacturing or selling its products under the trade mark FROLLIK.
2. This judgment, which is reported in 1996 (Suppl.) Arb.LR 403, was assailed in appeal and the following order was passed on 30.12.1996 by a Division Bench.
"In the meantime, the impugned order shall be subject to a modification that the appellant may operate in the territories of Delhi, Haryana and Rajasthan, and shall not operate in Bihar and West Bengal.
This order is subject to the condition that the appellant shall maintain accounts and, on the next date of hearing, shall give accounts in the court of the sales made during this period in a sealed cover."
This interim order was confirmed by a Division Bench on 31.7.1997.
3. The case was, therefore, listed before the Joint Registrar (O) on several occasions but there was no appearance on behalf of Defendant. Finally the case was listed before Court on 7.8.1998 and subject to payment of Rs. 2,000/- as costs the Defendant was granted one more opportunity to appear before the Joint Registrar for admission/denial of the Plaintiff's documents. This further opportunity has not been availed of and by order dated 19.11.1998 the Defendant was proceeded ex parte. Affidavit by way of ex parte evidence was permitted to be filed. It is in these circumstances arguments in the case were heard on 9.7.1999.
4. I have perused the affidavit by way of evidence of Shri Shanti Swarup Agarwal, the Director of the Plaintiff Company, which affidavit is dated 30.3.1999. In my view the Plaintiff has sufficiently proved the averments contained in the plaint. I have also carefully read the detailed order passed in this case by my learned brother Justice K. Ramamoorthy. I am in complete agreement with him. I would, therefore, decree the suit in terms of the previous orders passed in the case, all be it at the interlocutory stage as follows:
(i) Restrain the defendants, their Directors, servants and agents, from manufacturing, selling and/or offering for sale, ice cream under the trade mark FROLLIK or any other mark as may be deceptively similar to the trade mark ROLLICK of the plaintiff and passing off of the ice cream of the defendants as and for that of the plaintiff;
(ii) Restrain the defendants, their directors, servants and agents from manufacturing, selling and/or offering for sale, ice cream packed in packaging having a device stated in para (16) (Annexure-B) or deceptively similar thereto as amounting to passing off of the goods and/or business of the defendants for those of the plaintiff.
(iii) The plaintiff will be entitled to costs.
5. In view of the above decree for permanent injunction is passed in favour of the Plaintiff.
6. Accordingly the suit stands disposed of.
