Bosch India Limited (Earlier ... vs Gagandeep Trading Company
2009 Latest Caselaw 549 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) 604/2004

%16.02.2009                           Date of decision: 16.02.2009

BOSCH INDIA LIMITED                                   ....... Plaintiff
(Earlier known as Motor
Industries Company Ltd)
                           Through: Mr M.S. Ananth, Advocate

                                    Versus

GAGANDEEP TRADING COMPANY ....... Defendant
                           Through: ex parte


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?   No

2.    To be referred to the reporter or not?          No

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


RAJIV SAHAI ENDLAW, J.

1. The plaintiff company engaged, inter alia, in the business of

manufacture and marketing of a wide range of automotive

components under the trademark MICO stated to be coined by

taking the first letter of each of the words of the plaintiff's earlier

corporate name and also under the devise of a "wheel", instituted

the present suit for restraining the defendant stated to be a

proprietorship of one Shri Avtar Singh Anand s/o Shri Gurdeep Singh

Anand for restraining them from manufacturing, selling etc

automobile parts under the plaintiff's trademark MICO and/or the

devise of the "wheel" and for ancillary reliefs including of damages

for recovery of Rs 25 lacs.

2. Vide ex parte order dated 27th May, 2004 the defendant was

restrained from manufacturing, selling, offering for sale etc the

spurious automobile parts under the plaintiff's trademark / device or

under any other trademark or device deceptively similar thereto. On

an application of the plaintiff by the order of same date, a Court

Commissioner was also appointed to visit the premises of the

defendant or any other place where the Commissioner had reason to

believe that the spurious goods were being stored and kept by the

defendant. The Commission was executed on 29th May, 2004, as per

the report dated 30th June, 2004 on record. The Commissioner found

Mr Gurdeep Singh Anand and Mr Avtar Singh Anand in the

premises. The Commissioner also found large quantities of used

second hand auto components some of which were under chemical

treatment and which included components hearing the mark MICO

and/or the "wheel" mark. Though the Commissioner found large

quantities of the infringing goods but the same were mixed with

other goods/components not bearing the infringing mark/device.

3. The defendant filed a written statement dated 27th January,

2005 through Shri Avtar Singh Anand s/o Shri Gurdeep Singh Anand

as proprietor of the defendant, generally denying the contents of the

plaint. It was, inter alia, stated that the defendant concern was

carrying on business as a scrap dealer but had closed its business

prior to the institution of the suit. Similar statement was made by

the counsel for the defendant on 29th March, 2006 including to the

effect that the defendant was not manufacturing and selling Mico

Fuel Injection Equipment and has no future plans of doing so. In the

circumstances Mr Avtar Singh Anand, proprietor of the defendant,

was directed to be present in person for recording his statement.

4. On 27th September, 2006 the statement of the proprietor of the

defendant was recorded. He stated that he was earlier the sole

proprietor of M/s Gagandeep Trading Company which was closed on

31st March, 2003. He further stated that they were dealing in

trading of auto motor parts prior to 2003 but thereafter stopped the

said trading also and have no future plan of doing so.

5. On 11th December, 2006 it was recorded that the aforesaid

statement of the defendant did not satisfy the plaintiff and the

plaintiff sought to continue with the suit for the reliefs claimed

against the defendant. Since the defendant did not appear on that

date, it was ordered to be proceeded against ex parte and remains ex

parte.

6. On 26th April, 2007 the counsel for the plaintiff made a

statement that the suit may be disposed of by confirming the ex

parte order only i.e., by merely passing a decree for permanent

injunction against the defendant. However, this court felt that the

plaintiff should lead evidence to prove its case.

7. The plaintiff has thereafter filed the affidavit by way of

evidence of Mr V Sadanandam, Manager of the plaintiff and the

affidavit was tendered into evidence on 20th January, 2009.

8. It is the case of the plaintiff and in evidence that the plaintiff

prior to the institution of the present suit had instituted CS(OS)

2710/2000 in this court against Mr Gurdeep Singh Anand and Mr

Satnam Singh, father and brother respectively of Mr Avtar Singh

Anand, proprietor of the defendant herein and who were carrying on

business in the name and style of M/s Anand Trading Company. In

the said suit, an order of injunction was passed against the said Mr

Gurdeep Singh and Mr Satnam Singh restraining them from

infringing the trademark and copyright of the plaintiff. It is the case

of the plaintiff that the business in the name and style of the

defendant was commenced to defeat the order of injunction against

the father and brother of the defendant herein.

9. As far as the defence of the defendant of having closed down

the business on 31st March, 2003 prior to the institution of the suit

even, is concerned, the same stands falsified from the report of the

Court Commissioner. The Commissioner not only found large number

of infringing goods at the premises of the defendant but also found

some auto components under chemical process which leads one to

believe that the defendant was as on the date of visit by the

Commissioner still carrying on business and had not closed down the

business. Though the written statement was filed by the defendant

but neither were any objections filed to the report of the

Commissioner nor was any explanation contained in the written

statement with respect to the same i.e., as to how, if the business of

the defendant stood closed as on 31st March, 2003, the

Commissioner found the infringing goods in the premises of the

defendant. The aforesaid alone, in my view, entitles the plaintiff to

the decree for permanent injunction. The witness of the plaintiff has

otherwise also proved the case of the plaintiff. In any case, the

evidence of the plaintiff remains unrebutted. The plaintiff has proved

registration of trademark and device and extensive use thereof. It is

axiomatic that the defendant cannot infringe the same.

10. The counsel for the plaintiff, as aforesaid, has made a

statement confining the relief in the present suit to the relief of

permanent injunction only. Even otherwise it is common knowledge

that such persons, as the defendant, dealing in spurious goods, do

not maintain any account books and/or frequently change their place

of business and as such no purpose would be served in directing the

relief of delivery or of accounts.

11. In the circumstances aforesaid, the suit of the plaintiff is

decreed in terms of prayer paragraphs (a) and (b) of the plaint. The

plaintiff shall also be entitled to costs of the suit. Counsel's fee

assessed at Rs 35,000/-.

RAJIV SAHAI ENDLAW (JUDGE) February 16, 2009 M