Cargil Foods India Ltd. vs Mr. M.P. Mandot & Anr
2009 Latest Caselaw 903 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) No. 1481/2006

% 19.03.2009                          Date of decision:-19.03.2009

CARGIL FOODS INDIA LTD.                               .... Plaintiff
                           Through: Mr. Dhruv Anand, Ms. Vaishali and Ms.
                                    Hima Lawrence, Advocates

                                  Versus

Mr. M.P. MANDOT & ANR                                .... Defendants
                           Through: Ex parte


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

1.     Whether reporters of Local papers may
       be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether the judgment should be reported
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The present suit was instituted with respect to the trademark

„SHUBH‟ registered in respect of Soyabean Oil (edible). The

defendant No. 1 who is proprietor of the defendant No. 2 was

averred to have adopted the trademark „SHUDH‟ also in respect of

Soyabean Oil. The suit is filed for the reliefs of permanent injunction,

damages, accounts and delivery.

2. Vide ex parte order dated 27th July, 2006, the defendants were

restrained from manufacturing, packing, selling, offering for sale,

advertising, directly or indirectly dealing in soyabean oil and any

other mark which is identical with or deceptively similar to the

plaintiff‟s trademark „SHUBH‟. On application of the plaintiff, vide

the same order, the Court Commissioner was also appointed to visit

the premises of the defendants. The Court Commissioner filed the

report of infringing packaging material found in the premises of the

defendants.

3. The defendants appeared before this Court through counsel

and on the very first date stated that the matter is likely to be

compromised. On 30th March, 2007, the counsel for the defendants

stated that the defendants had stopped trading under the impugned

trademark and had no intention to in future deal under the impugned

trademark and had no objection if the decree for permanent

injunction was passed against the defendants. However, request was

made for the plaintiff to give up the claim for damages. The matter

was again adjourned from time to time. On 13th November, 2007, the

counsel for the plaintiff informed that the plaintiff was not willing to

give up the claim for damages against the defendants. In the

circumstances, the defendants were directed to file their written

statement and the ex parte order was made absolute during the

pendency of the suit.

4. The defendants failed to file any written statement and

thereafter also stopped appearing before the Court and were on 28 th

April, 2008 proceeded against ex parte and the plaintiff was directed

to file ex parte evidence. The plaintiff has filed the affidavit by way of

examination in chief of its Head Marketing and the said affidavit has

been tendered in evidence.

5. From the aforesaid, it would appear that there is no need to

discuss, as far as the relief of permanent injunction is concerned

inasmuch as that has been conceded by the defendants. Even

otherwise, on the material on record, I find the plaintiff entitled to

the said relief. The only other question which remains for

adjudication is the claim of the plaintiff for the reliefs of delivery and

damages.

6. Notwithstanding the trial having been confined to damages

only as aforesaid, the witness of the plaintiff has, so to say, led no

evidence whatsoever thereon except to make a bare statement that

"the plaintiff believes that the loss and damage to its goodwill and

reputation on account of ............ infringement ............. is estimated

to be Rs. 20 lacs". The plaintiff ought to have led evidence of the

period for which the defendants infringed the trademark, the price at

which the plaintiff was selling the goods and the price at which the

defendants were selling the goods under the infringing trademark,

effect which the sale by the defendants had on the sale by the

plaintiffs and as to by what quantum did sales increase if at all of the

plaintiff, upon the defendants being restrained. Only if the evidence

to said effect had been led, could this court come to the conclusion

as to the loss suffered by the plaintiff and could court have computed

the damages.

7. Be that as it may, the loss or damage to the plaintiff is implicit

upon admission of infringement. The defendants by remaining absent

from trial cannot avoid the liability for damages. However, in the

absence of any evidence from the plaintiff, the Court relying upon

Time Incorporated Vs. Lokesh Srivastava 2005 (30) PTC 3 and

Hero Honda Motors Ltd. Vs. Shree Assuramji Scooters 2006

(32) PTC 117 is left with no option but to award nominal damages in

the sum of Rs.3 lacs to the plaintiff. While arriving at the said figure,

I have taken into note the volume of the infringing packaging

material found by the Court Commissioner at the premises of the

defendants.

8. The suit of the plaintiff is thus decreed in terms of prayer

paragraph 17 (i) to (iii) of the plaint. A decree for damages in the

sum of Rs.3 lacs is also awarded in favour of the plaintiff and against

the defendants. The Court Commissioner had handed over the seized

goods to the defendant No. 1. The defendant No. 1, upon being

approached by the plaintiff is directed to deliver the same to the

plaintiff who will be at liberty to destroy the same without any

liability to the defendants. The plaintiff shall also be entitled to costs

of the suit. The counsel‟s fee is assessed at Rs. 50, 000/-.

The decree sheet be drawn up.

RAJIV SAHAI ENDLAW,J March 19, 2009 rb