Kirloskar Copeland Ltd. vs Daljeet Singh And Anr.
2006 Latest Caselaw 420 Del

JUDGMENT

R.S. Sodhi, J.

1. CM(M)1732/2004 is directed against the order dated 16.11.2004 of the Additional District Judge, Delhi whereby the learned Judge has disposed of an application under Order 6 Rule 17 CPC for amendment to enhance the valuation of the Suit to Rs. 25,00,000/- (rupees twenty five lakhs) for the purposes of jurisdiction.

2. Nobody appears for the respondent in spite of service. The facts as stated in the application are as follows:-

...that the plaintiff has filed the present suit for permanent injunction, infringement of trademark, copyright, passing off, rendition of accounts against the Defendant. An injunction order was passed against the Defendants restraining them from dealing in re-conditioned compressors and components under the trademark Kirloskar. After the injunction order another Local Commissioner was appointed who recovered huge infringing material from the premises of the Defendants and it appears that the Defendants had been violating the said interim order. The Plaintiff has further stated that after violation of the order the Defendants might have made profit of more than 25 lakhs while infringing the trademark of the Plaintiff. The Plaintiff wants to amend the paragraph 16 and 19 of the plaint by enhancing the relief of rendition of accounts from 5 lacs to 25 lacks. The Plaintiff has prayed that application be allowed because no prejudice will be caused to the Defendant as matter is at initial stage.

3. It is contended by counsel for the petitioner that in the suit filed for infringement of copyright the respondent had continued to violate the same and, therefore, a Local Commissioner was appointed who returned his observation to the effect that the respondents were reconditioning compressors and components under the trademark 'Kirloskar'. An injunction was issued yet, in spite of the injunction, the respondent continued to violate the trademark and reconditioned compressors under the trademark 'Kirloskar'. A contempt petition was filed and also another Local Commissioner was appointed. He too confirmed that the trademark was being infringed. Consequently, an application under Order 6 Rule 17 was moved to amend the plaint to raise the valuation to Rs. 25,000/- (rupees twenty five thousand) for the purposes of jurisdiction. He contends that since the loss the petitioner had incurred is recurring, it has became necessary to amend the plaint. He supports his contention by a judgment of the Supreme Court in Commercial Aviation and Travel Company and Ors. v. Mrs. Vimla Pannalal .

4. Heard counsel for the petitioner and have gone through the order under challenge. It appears to me, once the injunction has been violated and the respondent continues to infringe the trademark by reconditioning compressors and components under the trademark 'Kirloskar' the damage suffered by the plaintiff would be on a recurring basis.

5. In that view of the matter, it would be open to the plaintiff/petitioner herein to amend his plaint to include in it a higher quantum of damages which is sought to be done by an application under Order 6 Rule 17 CPC. The Supreme Court in the case of M/s. Commercial Aviation and Travel Company (supra) was dealing with a case of a similar nature and had permitted an amendment to this effect.

6. In view of the above, I see no difficulty in allowing the aforesaid amendment. Consequently, I set aside the order dated 16.11.2004 and allow the application under Order 6 Rule 17 CPC to the effect as mentioned therein.

7. Civil Miscellaneous Main 1732/2004 is disposed of accordingly. Civil Miscellaneous Application 340/2005 also stands disposed of.