Amrit Banaspati Co. Ltd. vs M/S Goindwal Sahib Vanaspati ...
2010 Latest Caselaw 4764 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI



+                       CS(OS) NO.13/2005


                                       Date of Decision : 08.10.2010


AMRIT BANASPATI CO. LTD.                         ......    Plaintiff
                      Through:             Mr.Dhruv Bhagat, Advocate

                                 Versus



M/S GOINDWAL SAHIB VANASPATI MILLS
                                  ......        Defendant
                     Through: Mr.     Shailen    Bhatia,
                              Advocate.


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)

IA No.15053/2008(u/O VII Rule 10 CPC)

1. This order shall dispose of the suit as well as an application

of the plaintiff under Oder 7 Rule 10 CPC for return of the

plaint so as to enable the plaintiff to file the same in

appropriate Court and also extending the interim order dated

7.1.2005 so as to enable the plaintiff to draw the benefit of

the restraint order.

2. Briefly stated the facts of the case are that the plaintiff filed a

suit for infringement of trademark, Copyright and passing off

against the defendant. It was alleged that the plaintiff was a

company incorporated in the year 1940 and was

manufacturing for selling Vegetable oils, milk and milk

products. It is alleged that the business of Vanaspati and

dairy milk was being conducted in poly packs with the

trademark GAGAN.

3. The registration in respect of the aforesaid edible items were

obtained in 1974 and 1992 pertaining to Vanaspati oil and

various types of milk and milk products respectively. It is

alleged that the defendant is using the mark GANGA which is

deceptively similar to that of the plaintiff apart from adopting

somewhat similar color scheme with different shades.

4. On the basis of these allegations, the matter came up for the

first time on 7.1.2005 when this Court had issued summons

to the defendant and also passed an ex parte ad interim

injunction against the defendant restraining them from using

the mark GANGA in any manner whatsoever in respect of its

products of Vanaspati etc. This ex parte ad interim injunction

order has continued till date.

5. The defendant had put in appearance and filed its written

statement contesting the claim of the plaintiff.

6. On 21.2.2006, issues were framed and the plaintiff was given

two weeks' time to file the list of witnesses and four weeks'

time for the purpose of filing the affidavits by way of evidence.

More than five years have elapsed and not even a single

affidavit has been filed during all these years. On the

contrary, the plaintiff continued to file applications, one after

other, which showed that it wanted to delay the disposal of

the main suit itself.

7. On 12.11.2007, the plaintiff's application for amendment was

allowed. Thereafter, no affidavit by way of evidence has been

filed and the present application under Order 7 Rule 10 CPC

has now been filed in the year 2008 contending that this

Court does not have the jurisdiction on account of

arrangement of various businesses of the sister concern

under which the branch office of the erstwhile plaintiff

company has been closed in Delhi.

8. An application under Oder 7 Rule 10 CPC was filed on

24.11.2008 wherein it was stated that Amrit Corporation Ltd.

and its sister concern have undergone a scheme of

arrangement under which the name of the plaintiff company

has been firstly changed to M/s Amrit Corporation Ltd. and

fresh certificate of incorporation dated 26.6.2007 was issued

by the Registrar of Companies. Photocopy of the said

certificate is purported to have been attached along with the

application. It has also been stated that M/s Amrit

Corporation Ltd. which has taken over the trademark GAGAN

in respect of edible oils and against Vanaspati has stopped its

office in Delhi and therefore, the only existing office of the

Corporation is either at Ghaziabad or registered office at

Chandigarh Road, Rajpura-140401. It is alleged that since

the present suit for infringement was filed by invoking

Section 134(2) of the Trademarks Act and Section 62 (2) of the

Copy Right Act, 1957 on account of the plaintiff having been

carrying on business in Delhi which has ceased to exist,

therefore, the plaintiff be permitted to withdraw this suit with

liberty to file a fresh suit in Patiala where the registered office

is situated. It was also urged that in the meantime the

interim order dated 7.01.2005 be continued to ensure the

benefit of the interim order to the plaintiff which he has

enjoyed for almost 5½ years.

9. The defendant has filed its reply to the application and

contested the claim of the plaintiff for return of plaint so as to

enable it to file the same at Patiala. It has been contended by

the learned counsel for the defendant that this is only a ploy

to overreach the Court. The plaintiff after having been given

undue indulgence of filing the affidavits by way of evidence

which he has failed to avail despite a lapse of 5½ years

cannot contend that there has been scheme of arrangement

between the plaintiff company and its sister concern and

consequently stoppage of its branch office in Delhi, therefore,

this Court does not have the jurisdiction. It has been

contended by the learned counsel for the defendant that the

rights of the parties in a pending suit is decided on the basis

of the date of institution of the suit and not on the basis of

subsequent developments which has taken place during the

pendency of the suit. The learned counsel has also relied

upon the case titled Harshad Chiman Lal Modi Vs. D.L.F

Universal Ltd. & Anr. AIR 2006 SC 646.

10. I have heard the learned counsel for the parties and gone

through the record.

11. Before the application of the plaintiff under Order 7 Rule 10

CPC is dealt with, the question which arises for consideration

is whether the said application of the plaintiff is required to

be considered at all. There is no dispute about the fact that

the plaintiff had come to Court in the month of January,

2005 making certain allegations with regard to the

infringement of its trademark GAGAN in respect of Vanaspati

articles of the plaintiff by alleging that the defendant was

using the mark GANGA which was somewhat similar to the

mark of the plaintiff and therefore, violating the statutory

right of the plaintiff company. The allegations of violation of

statutory right and the Copyright in respect of design, get up,

color scheme, etc. were also made. Therefore, a definite case

had been set up by the plaintiff when it had approached the

Court and the Court had issued an ex parte ad interim order

restraining the defendant from using the word GANGA in

respect of edible oils/vanaspati unless and until the interim

order is vacated or modified. The benefit of the said interim

order though extended originally only for 15 days but

thereafter it has been continued till date.

12. In the meantime, it is not in dispute that on 21.2.2006,

issues were framed and a definite time was given to the

plaintiff to file the list of witnesses within two weeks and

affidavits by way of evidence within four weeks. On

20.4.2006, it was observed that although the list of evidence

was filed but no affidavit was filed. Thereafter, both the

sides continued to file the application for various

peripheral things. The plaintiff was derelict in not producing

any evidence or making any effort in this regard.

13. The plaintiff despite expiry of nearly 5½ years has curiously

chosen not to place even a single affidavit of its witness on

record. Order 17 Rule 3 CPC reads as under:-

"3. Court may proceed notwithstanding either party fails to produce evidence, etc.--

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,--

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is, absent, proceed under Rule 2."

14. A perusal of the aforesaid order would clearly show that on a

date when the case is fixed if a party does not adduce any

evidence, the Court has no other option but to close the

evidence and dismiss the suit on account of lack of evidence

in support of the issues in respect of which onus is on the

plaintiff.

15. In the instant case also, the application of the plaintiff under

Order 7 Rule 10 CPC which has been filed in the month of

November, 2008 is only a ploy to defer the passing of the

order under Order 17 Rule 3 CPC.

16. The plaintiff was aware of the fact that issues were framed in

the year 2006 and a definite time schedule had been fixed for

the purpose of filling evidence and it could not be scuttled or

permitted to be scuttled by him by filing the present

application and contending that since there has been a

scheme of rearrangement between the plaintiff and the other

sister concern and therefore, in the light of these subsequent

developments, the office of the company which it had got

under that said scheme the trademark GAGAN cannot

maintain the suit. The rights and liabilities of the parties in

respect of pending suit have to be decided on the basis of pre-

existing rights which were available to them at the time of

filing of the suit although the subsequent developments

during the course of evidence, if produced may have some

bearing with regard to the same. It is very unreasonable that

a suit has been permitted to linger on for 5½ years after

framing of issues and without producing any evidence, if it

was permitted to be withdrawn on the ground that the Court

has ceased to have jurisdiction.

17. Another unreasonable prayer is made in the application that

while returning the plaint, the benefit of the interim order

may be extended so that the same enure to the benefit of the

plaintiff till the time a fresh suit is filed. The practice of

grant of interim order or extending the same in cases where

either the plaint is rejected on account of lack of jurisdiction

or where the plaint is returned so as to enable the parties to

approach the appropriate forum has been deprecated by

Courts of record.

18. In the instant case, although the plaint has been sought to

be rejected, which request is not been granted by this Court

but the prayers which have been made by the plaintiff clearly

show that the entire exercise on the part of the plaintiff is

actuated with a view to subject the defendant to unreasonable

harassment of taking him to another forum so as to settle

scores with him.

19. Under these circumstances, I feel that not only the

application of the plaintiff under Order 7 Rule 10 CPC

deserves to be rejected but the evidence of the plaintiff is also

closed under Order 17 Rule 3 CPC. In my opinion, all the

requisite conditions of Order 17 Rule 3 CPC are satisfied that

is despite time having been granted, no evidence has been

produced or filed by the plaintiff till date, the suit must fail,

accordingly, the same is dismissed.

20. File be consigned to the Record Room.

V.K. SHALI, J.

OCTOBER 08, 2010 RN