Shell Brands International Ag. & ... vs Mr.Pradeep Jain
2010 Latest Caselaw 4252 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                             Date of decision: 14.09.2010


+                               RFA(OS) No.29/2010


SHELL BRANDS INTERNATIONAL AG. & ANR.                             ...APPELLANTS

                Through:                        Mr.Anil Sapra, Sr.Adv. with
                                                Mr.Sushant     Singh, Ms.Urvi
                                                Kuthiala, Mr.Gautam Panjawani
                                                and       Mr.Prakash     Arya,
                                                Advocates

                                         Versus


MR.PRADEEP JAIN                                                    ...RESPONDENT


                Through:                        Nemo.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

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                                  No
        reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. The appellants (original plaintiffs) filed a suit against the

respondent (original defendant) for permanent injunction

restraining infringement of trade mark, passing off,

damages, delivery up, etc. in respect of their trademark

„SHELL‟. Summons were issued in the suit and notice on the

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interim application for injunction under Order 39 Rules 1

and 2 of Code of Civil Procedure („the said Code‟ for short)

giving limited ad interim ex parte relief to the appellants.

The notices in both the suit and the application were made

returnable before the Joint Registrar. The respondent

entered appearance and pleadings were completed both in

the suit and the application. None of the parties filed any

original documents for purposes of admission/denial and

thus the Joint Registrar placed the suit and the applications

before the Court on 12.05.2009. We may note that the

respondent had also filed an application under Order 39

Rule 4 of the said Code.

2. On 12.05.2009, issues were framed in the suit and parties

were directed to file their list of witnesses within fifteen

days and for the appellants to file their affidavits of

examination in chief within six weeks. The evidence was

to be recorded before the Joint Registrar. Insofar as the

interlocutory applications are concerned, at request of

learned counsel for the respondent, the same were

adjourned to 28.08.2009 with a direction for continuation of

the interim orders.

3. The suit was listed before the Joint Registrar on 31.07.2009

when it was found that neither list of witnesses had been

filed by either of the parties nor affidavits of evidence were

filed by the appellants. Further time was granted and the

suit was re-notified for cross-examination of the appellants‟

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witnesses on 18.12.2009. In the meantime, the interim

applications were listed before the Court on 28.08.2009, as

already fixed, but once again at the request of the learned

counsel for the respondent, the same were adjourned to

12.10.2009. On 12.10.2009, none appeared for the

appellants before the learned Single Judge and thus those

applications were re-notified on 07.01.2010. We may note

at this stage that though these orders were passed actually

on the applications, inadvertently the applications numbers

were not mentioned and only suit was mentioned which was

already listed before the Joint Registrar. The appellants

filed their affidavits by way of evidence. On 18.12.2009, the

Joint Registrar was not holding the Court and thus the

matter was re-notified for 22.12.2009. The counsel for the

appellants on that date stated before the Joint Registrar that

their witnesses had not come. The Joint Registrar placed

the matter before the Court on 07.01.2010 as the date was

already fixed before the learned Single Judge, albeit for

hearing of the interlocutory applications. This order of the

Joint Registrar appears to have been passed inadvertently

ignoring the fact that what was before the Court were only

the interlocutory applications and not the suit for which trial

was going on and yet to be completed by the Joint Registrar.

On 07.01.2010, when the interlocutory applications were

listed, arguments were heard by the Court and orders

reserved on the suit itself. The judgment came to be

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pronounced on 01.02.2010 dismissing the suit, which order

is assailed in this appeal.

4. Learned senior counsel for the appellants has drawn our

attention to all these proceedings to contend that apart

from the legality of the impugned order on merits, the trial

in the suit was not even complete. What were actually

placed before learned Single Judge were only interlocutory

applications and the suit had been posted before the Court

by the Joint Registrar at that stage only because of non-

appearance of the witness of the appellants/plaintiffs for

cross examination though affidavits of evidence of the

appellant had been filed. The respondent naturally had not

led its evidence. The issues framed show that onus of some

of the issues was on the appellants while onus of the other

issues was placed on the respondent. In the absence of

cross-examination of the witness of the appellants and no

evidence on behalf of the respondent, there could have

been no question of discharge of onus by either of the

parties for determination of the issues. We also note that

there are not even findings on some of these issues in the

impugned judgment though such a finding is liable to be

recorded for each issue.

5. We thus find merit in the grievance made by the learned

senior counsel for the appellants that the suit has been

decided even without complete trial. It is not a case where

the appellants‟ evidence has been closed on account of any

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default. At least there is no order passed to that effect.

The suit was erroneously placed before the Court by the

Joint Registrar who was still in the process of recording of

evidence and it appears that learned Single Judge also

proceeded with the suit inadvertently in the absence of

evidence though actually the interlocutory applications were

required to be considered by him on the relevant date to

either confirm or vacate the injunction. The issues could not

have been decided as framed without evidence being led

by the respective parties on whom onus had been put,

especially as most of these issues are issues of fact.

6. At the stage of admission of the appeal, interim orders were

granted on the application for stay accompanying the

appeal on 26.03.2010 in the following terms:

" CM No.5673/2010 (Stay)

Notice.

Learned counsel accepts notice on behalf of the respondent.

The learned Single Judge had passed the following injunction order in CS(OS) No.639/2008 on 8th April, 2008:-

"Accordingly, till further orders, the defendant, its constituents, offices, servants and agents etc. are restrained from using, manufacturing, marketing or exporting their products or any other goods under the trademark/trade name SHELL or any other name/mark deceptively similar to that of the plaintiffs. The defendant is also restrained from using the word SHELL as their website or domain name, till further orders."

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The injunction will continue till the disposal of the appeal.

CM stands disposed of."

7. The aforesaid is actually the injunction which had been

granted in terms of orders of the learned Single Judge on

08.04.2008 and operating since then.

8. We may note that the respondent aggrieved by the order

dated 26.03.2010 passed on the interim application had

preferred an SLP(C) No.21252/2010, which was dismissed

on 09.08.2010 when the Supreme Court also made a

request to the Division Bench to dispose of the first appeal

as expeditiously as possible. In view of that order, the

appeal was listed before this Court for directions on

07.09.2010, but we found that no directions were required

as the appeal was already on our Regular Board as Item

No.24. The appeal reached for hearing on 09.09.2010

when we heard learned counsel for the appellant, but none

appeared for the respondent. The position was the same on

13.09.2010 as also today when none appeared for the

respondent.

9. We are thus of the considered view that on the basis of the

submissions advanced before us and the records of the

case, the impugned judgment and decree is unsustainable

and is liable to be set aside with a direction to remand both

the suit and interim applications for consideration before

the learned Single Judge. The suit is required to be decided

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post trial while interim applications can be decided

considering inter alia the pleadings on the same.

10. We thus issue the following directions:

i) The impugned judgment and decree dated 01.02.2010 is

set aside.

ii) IA Nos.4302/2008 (of the plaintiffs under Order 39 Rules

1 and 2 of CPC) and 14314/2008 (of the defendant under

Order 39 Rule 4 of CPC) be placed before the learned

Single Judge on 08.11.2010 for directions.

iii) CS(OS) No.639/2008 be placed before the Joint Registrar

for directions on 27.09.2010 to fix a date for cross

examination of the witnesses of the appellants

whereafter the respondent can file their affidavits of

evidence and the appellants will get the right to cross

examine those witnesses. The suit will be placed before

the Court after conclusion of trial.

iv) Since the impugned judgment and decree have been set

aside and the respondent has chosen not to appear,

notice would have to be issued by the learned Single

Judge and the Joint Registrar, to the respondent, to

ensure his presence.

v) Till the interim applications are finally decided by the

learned Single Judge, the order passed in the suit on

08.04.2008, which was continued by the Division Bench

of this Court vide order dated 26.03.2010, would

continue to enure for the benefit of the appellants.

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11. The appeal is accordingly allowed leaving the parties

to bear their own costs.

SANJAY KISHAN KAUL, J.

SEPTEMBER 14, 2010                                              VALMIKI J. MEHTA, J.
dm

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