Sachin Joshi Products (I) Pvt. ... vs United Distillers Plc & Anr.
2009 Latest Caselaw 5395 Del

*            HIGH COURT OF DELHI : NEW DELHI

+          CS (OS) No. 2221/2007

Sachin Joshi Products (I) Pvt. Ltd.                         ...Plaintiff
                      Through : Mr. M.S. Ganesh, Sr. Adv. with
                                    Ms. Anuradha Mukherjee and
                                    Mr. Sukum Chande, Advs.

                                 Versus

United Distillers Plc & Anr.                              ...Defendants
                       Through   : Mr. C.M. Lall, Mr. Ashish
                                   Prasad and Mr. Subhash Butoria,
                                   Advs.

Reserved on : November 4, 2009
Decided on : December 23, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      No

2. To be referred to Reporter or not?                   No

3. Whether the judgment should be reported
   in the Digest?                                       No

MANMOHAN SINGH, J.

1. The present suit has been filed by the plaintiff for damages

of Rs.20 crores and other reliefs under Section 26 and Order 7 Rule 1 of

the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC)

against the two defendants namely M/s. United Distillers Plc and M/s.

Diageo Brands B.V., inter alia on the ground that the defendant no.1

M/s. United Distillers Plc filed a suit against the plaintiff herein being

CS (OS) No. 1232/1997 wherein the present defendant no.1/plaintiff

therein sought ex parte ad interim injunction, which was granted by this

court on 30th May, 1997 and the same was confirmed on 28th July, 2000

and subsequent to obtaining the injunction order from the court, the

present defendant no.1/plaintiff therein failed to produce evidence in the

said matter and kept the case lingering on and ultimately the said suit

filed by the present defendant no.1 was dismissed due to want of

producing the evidence despite being granted a number of opportunities.

2. As per the plaintiff, as observed by the court vide order dated

22nd January, 1999, the issue which arises in the present matter is

whether such a suit as the present one, circumstances wherein are that

the plaintiff is claiming damages on the ground of defendant no.1 herein

having obtained injunction from the court and then the suit having been

dismissed for non-producing of evidence and for non-prosecution, would

lie or not.

3. The brief facts of the case are that the present plaint was

ordered to be registered as suit vide order dated 13th November, 2007.

The defendant no.1 herein was proceeded against ex parte as per order

dated 5th September, 1998. The written statement filed by the defendant

no. 2 was taken on record and time was granted to the parties to file the

original documents and thereafter the matter was listed before the court

for framing of issues on 8th December, 2008.

4. On 8th December, 2008 it was directed by the court that the

Principal Officer of the plaintiff will be present in the court on 22nd

January, 2009 for recording of statement under Order X Rule 2 of the

CPC and then the issues will also be settled on the said date.

5. When the matter was listed on 22nd January, 2009 the issues

were not framed nor was the statement under Order X Rule 2 CPC

recorded. The court while passing the order on the said date i.e. 22 nd

January, 2009 observed as under :-

"......................

An issue arises in this case whether such a suit claiming damages on the ground of defendant no.1 obtaining injunction from the Court and then the suit having been dismissed for not producing evidence and for non- prosecution would lie or not.

To come up for arguments on this sole issue on 24th April 2009.

In the meanwhile, parties shall file short synopsis by way of arguments on this issue a week before the next date of hearing, along with relevant case law, with advance copy to opposite side."

6. Thereafter the parties filed the written synopsis and the matter

was heard and the order was reserved on 4th November, 2009.

7. The contention of the plaintiff is that in terms of Section 9 of

the CPC, this Court has jurisdiction to try the present suit which is of a

civil nature and of which this court‟s cognizance is neither expressly nor

impliedly barred. Elucidating the „bar‟ mentioned in Section 9, learned

counsel for the plaintiff further contends that an express bar can only be

created by statute and in the present case, no such statutory bar exists.

As far as an implied bar is concerned, the same must be implicit in some

statutory provision or derived from an established legal principle,

therefore, according to the learned counsel for the plaintiff, the suit is not

barred under Section 9 of the CPC.

8. The second contention of the plaintiff is that the order/issue

as framed does not relate either to the jurisdiction of this court or to a bar

to the suit created by law for the time being in force, therefore, in terms

of Order 14 Rule 2(1) and (2) of the CPC, the said issue cannot be tried

and determined as a preliminary issue.

9. According to the plaintiff, the plaint does disclose cause of

action in view of the statements made in paras 2 to 19, 32 to 35, 39 to 48

and 52 of the plaint and without framing of a specific issue in this regard,

the question as to whether or not there exists a cause of action for the

present suit does not arise as the same is mixed question of fact and law.

For the reasons stated in the plaint, the plaintiff is dominus litis (Master

of the suit), the party which carries and controls an action and has

dominion over the case and has an inherent right to bring the present

action of a civil nature, which is not barred by statute and is not opposed

to public policy nor subserves public policy and is not an abuse of the

process of law.

10. Learned counsel for the plaintiff has argued that ultimately

there may not be any merit in the case and the same may be revealed

after the evidence is recorded.

11. He further contended that in the sphere of tort law the

principle of dominus litis is reinforced by the maxim ubi jus ibi

remedium (where there is a right, there is a remedy), which is the basic

principle of jurisprudence and as far as possible, the courts must always

aim to preserve and protect the rights of parties and extend help to

enforce them rather than deny relief, thereby rendering the rights

themselves otiose. He further contends that such a course would be

more conducive and would better conform to fair, reasonable and proper

administration of justice.

12. On the other hand, it is contended on behalf of the defendant

no.1 that the present suit is grossly barred by time and limitation and has

been wrongly instituted by the plaintiff for compensation for the alleged

injury caused by an ex parte ad interim injunction which was granted by

the court on 30th May, 1997 in a civil suit after the court was satisfied

that a prima facie case had been made out by the present defendant no.1

(plaintiff therein).

13. The injunction application was allowed by the said court by

giving detailed order on 28th July, 2000 confirming the ex parte ad

interim injunction. As per the defendants‟ counsel, the present suit is not

maintainable and the plaintiff cannot be permitted to initiate malicious

proceedings against the defendants after the lapse of almost seven years.

14. According to the defendants, the defendants herein (plaintiffs

therein) could not prosecute the said civil suit as the plaintiff herein

(defendant therein) had stopped appearing and there was only a remote

possibility of recovering damages and, therefore, the defendants were

under the belief that the present plaintiff/defendant therein had already

stopped the infringing activities.

15. The question of suffering damages under the said

circumstances does not arise.

16. Since the defendants herein/plaintiffs therein were left with

little hope to recover damages, therefore, they abandoned their suit and

did not produce evidence as per the directions of the court from time to

time.

17. Section 9 of CPC reads as under :-

"Section 9 - Courts to try all civil suits unless barred

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I].-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

[Explanation II .-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]"

18. From the well-settled law, as far as filing the present suit is

concerned, prima facie it appears that the jurisdiction of this court is not

expressly nor impliedly barred under Section 9 of the CPC even if the

plaintiff has a weak case and chances of dismissal of the matter are

apparent, still there is no statutory bar restricting the filing of the suit.

19. The defendants have also raised the point of limitation in their

pleadings along with the issue of maintainability. Without going to the

merit of the case I am of the view that as far as filing of the suit is

concerned, the suit cannot be thrown out in terms of Section 9 CPC as

this court has the jurisdiction to entertain and try the present suit, which

is civil in nature. The contention of the defendants with regard to

dismissal of the suit due to its non-maintainability on various grounds,

including the point of limitation, cannot be accepted.

20. Preliminary issues have so far not been framed in the matter,

therefore, I am of the view that before considering the objections raised

by the defendants, issues are necessary to be framed. The following

issues are framed in these circumstances :

1) Whether the suit filed by the plaintiff for damages on the ground of defendant no. 1 obtaining the injunction and then not prosecuting the suit with due diligence and then the suit having being dismissed for non- prosecution would be maintainable? OPP

2) Whether the suit filed by the plaintiff is within limitation? OPD

3) Whether the plaintiff is entitled to recover the damages as prayed in the suit?

21. Issue nos. 1 and 2 shall be treated as preliminary issues.

List the matter for hearing of the preliminary issues no. 1 and

2 on 22nd February, 2010.

MANMOHAN SINGH, J.

DECEMBER 23, 2009