Delhi High Court
Mr.Vijay Kumar Bhandari & Ors. vs Meenu Chabra & Anr. on 5 August, 2010
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO.887/2004 & IA No.7672/2010
Date of Decision : 05.08.2010
MR.VIJAY KUMAR BHANDARI & ORS. ...... Plaintiffs
Through: Mr. A.Srekumar, Advocate
Versus
MEENU CHABRA & ANR. ...... Defendants
Through: Proxy counsel for the
defendant.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
1. This is a suit for permanent injunction restraining the
defendants from infringing the trade mark of the plaintiffs
and for alleged action of passing off, violation of copyright,
damages, rendition of accounts and delivery up.
2. The plaintiff had claimed the following reliefs, in the plaint:-
""a. An order of permanent injunction restraining
the defendants, their servants and agents,
CS(OS) No.887/2004 Page 1 of 6
representatives, dealers and all others acting for
and on their behalf from manufacturing, selling,
offering for sale or otherwise directly or indirectly
dealing with auto spare parts bearing the mark
MK or MAK or any other mark deceptively similar
to the plaintiff no.1's trademark MK amounting to
an infringement of the registered trademarks:
b. An order of permanent injunction restraining
the unauthorized copying of the plaintiff's product
packaging amounting to an infringement of the
plaintiffs' copyright therein;
c. An order of permanent injunction restraining
the defendants, their servants and agents,
representatives, dealers and all others acting for
and on their behalf from manufacturing, selling,
offering for sale or otherwise directly or indirectly
dealing with auto spare parts bearing the mark
MK, MAK, MAKAI or any other mark deceptively
similar to the plaintiffs' trademarks MK, MX, MAX,
MKAI or using a packaging similar to the plaintiffs'
packaging amounting to passing off;
d. An order of permanent injunction restraining
the defendants, their servants and agents,
representatives, dealers and all others acting for
and on their behalf from using MK or MAK or any
other mark deceptively similar to the plaintiffs'
trademarks MK, MX and MAX as part of the
trading style amounting to passing off;
e. An order for delivery up of all infringing
products and their destruction therein.
f. An order for damages to the tune of
Rs.25,00,000/- for loss of sale and reputation
payable to plaintiff."
3. The allegations which were made in the plaint, after giving
detailed and verbose averments, were to the effect that they
were having the interest in the registration of the trademark
CS(OS) No.887/2004 Page 2 of 6
MK, MX, MAK, MKAI which were being used by them in a
distinctive packaging form for various auto parts. It was
alleged that the defendant no.2 along with his wife/defendant
no.1 were infringing and passing off the products
manufactured by them under deceptively similar marks and
passing off the products as that of the plaintiff.
4. On 18.8.2004, the very first date, an ex parte ad interim stay
was granted in favour of the plaintiff restraining the
defendants from directly or indirectly infringing, selling,
offering for sale spare parts/motor parts under the trade
name MK, MAK, MKAI. Similarly, they were also prevented
from using the packaging material similar to that of the
plaintiff.
5. After completion of pleadings, issues were framed on
30.8.2005 and the plaintiff was given two week's time to file
list of witnesses and affidavits by way of evidence within four
weeks. On 23.11.2005,this Court had observed that affidavits
by way of evidence were not filed and consequently, last
opportunity was given. Despite the last opportunity having
been given, no affidavits have been filed till date. On the
contrary, the plaintiff with a view to delay the disposal of the
case on merits filed applications and the case got embroiled
CS(OS) No.887/2004 Page 3 of 6
in disposal of the applications. Simultaneously, the plaintiff
started taking adjournments for exploring the possibility of a
settlement with the defendants. More than 1½ years was
spent on the purported settlement which was never struck
with the defendant.
6. The matter was taken up by this Court on 17.5.2010 when it
was noted that a perusal of the previous order sheets shows
that more than ten opportunities were granted to the parties
to arrive at a settlement but despite this, no settlement has
been arrived at and accordingly, one final opportunity was
given to the plaintiff to file affidavits by way of evidence
subject to payment of cost of Rs.50,000/- with the Delhi High
Court Legal Aid and Advise Committee within two weeks. An
application was filed for reduction/waiving of the cost which
was taken up on 1.6.2010. It was urged by learned counsel
for the plaintiff that he is in financial difficulty and he will be
unable to bear the cost imposed on him. It was contended
that in case cost is not reduced, the plaintiff will not be able
to prosecute the matter further and he will have to withdraw.
The Court showed the indulgence and reduced the cost from
Rs.50,000/- to Rs.25,000/- with the condition that affidavits
by way of evidence shall be filed within a week on 1.6.2010.
CS(OS) No.887/2004 Page 4 of 6
7. On 5.8.2010, when the matter came up after two months,
neither cost of Rs.25,000/- was deposited nor affidavits by
way of evidence had been filed. Further time for filing the
affidavits by way of evidence as well as for deposit of cost of
Rs.25,000/- was made. It was also contended that
Mr.Anand, Advocate was out of country and therefore, the
proxy counsel was not able to obtain instructions.
8. I have considered the submission made by the proxy counsel.
However, I find it unable to accede to the request of the proxy
counsel for further adjournments.
9. Issues have been framed almost five years back. Despite
sufficient opportunities having been given, affidavits by way of
evidence had not been filed. In order to avoid production of
evidence, time for settlement was obtained. After spending
1½ years for settlement without any result, another
opportunity was given for filing affidavit by way of evidence at
request, which was not availed. It seems that the plaintiff is
not interested in prosecuting the case diligently or is taking
for granted the time that has been given. It is because of
undue latitude given to the plaintiffs that cases remain on
board for years together with the result the genuine cases suffer. The
evidence of the plaintiff is closed under Order 17 Rule 3 CPC
CS(OS) No.887/2004 Page 5 of 6
and the Court proceeds to pronounce the judgment
dismissing the suit for the simple reason that there is not
even an iota of evidence placed on record in support of any of
the issues which were framed on 30.8.2005.
10. It may also be noted that under Section 35(B) CPC, payment
of cost is a condition precedent before the case can proceed
further and accordingly, the case could have been dismissed
for non prosecution on account of lack of deposit of cost of
Rs.25,000/- by the plaintiff. However, without resorting to
that provision, the suit of the plaintiff is dismissed for lack of
evidence in support of its case.
11. File be consigned to the Record Room.
12. Parties to bear their own costs.
V.K. SHALI, J.
AUGUST 05, 2010
RN
