M/S Super Seals India Limited vs M/S. Sos Oil Seals Private Limited
2013 Latest Caselaw 3537 Del

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                  Date of decision: 12.08.2013
+            FAO (OS) 359/2013, CM APPL.12149, 12150/2013

       M/S SUPER SEALS INDIA LIMITED                    ..... Appellant
                     Through: Mr. Sandeep Sethi, Sr. Advocate with
                     Ms. Anju Jain and Mr. Hitesh Sachar, Advocates.

                          Versus

       M/S. SOS OIL SEALS PRIVATE LIMITED            ..... Respondent

Through: Mr. Gaurav Kumar Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

% CM APPL.12150/2013 (Exemption) Allowed, subject to all just exceptions.

FAO (OS) 359/2013, CM 12149/2013 (Stay)

1. Issue notice. Mr. Gaurav Kumar Singh, Advocate accepts notice on behalf of the plaintiff/respondent.

2. With the consent of counsel for the parties, the appeal was heard finally.

3. The appellant is aggrieved by an order of the learned Single Judge dated 1.7.2013 whereby amendment of the suit was allowed. The defendant/appellant's grievance is that the impugned order

FAO(OS)359/2013 Page 1 permitted an amendment which in fact allowed the plaintiff to seek a permanent injunction to restrain the defendant from carrying on the business and trading in seals.

4. The brief facts of the case are that the plaintiff in the suit had submitted and relied upon a family settlement made between the members of two groups in a family which led to the plaintiff's company being assigned the exclusive right to use the trademark "SS" in relation to oil seals. The plaintiff claims to be assignee of the mark from one of the original member/party to the family settlement. He sought a restraint against the defendant - another original member/party to the family settlement from using the mark "SSIL" in relation to the goods and services it is providing. The suit was filed in the year 2006. Subsequently, sometime in 2008, the plaintiff sought amendment of the claim - in the suit, in effect seeking a permanent injunction to restrain the defendant from carrying on the manufacture of and trading in seals. The relevant portions of the amendment sought in the application which was ultimately allowed are as follows: -

"Amended para (4a) In the light of afore stated factual submissions, Plaintiff Company prays to this Hon'ble Court for passing of injunction orders, inter alia, restraining the defendant from continuing with illegal and unlawful activities, i.e., of manufacture and trading in "Seals Business". The Defendant Company is further liable to pay damages after rendering accounts to the plaintiff for all the monetary gains made by it from the date of Defendant Company having indulged in such malpractice until the time of re-imbursement of all profits accounted up to the date of payment.

FAO(OS)359/2013                                                          Page 2
              Amended para (4aa)

It is submitted that the Defendant Company, by virtue of Family Settlement dated 27.03.1997 r/w the orders passed by this Hon'ble Court on 21.05.1997 in CP No.67 of 1997, is completely stopped from indulging in manufacture and trading in "Seals Business" and therefore the seals business being carried out by the defendant company is unjust enrichment at the cost and expense of Plaintiff Company."

5. As a consequence to the above two averments, the following additions to the relief clause was sought by paragraph 7 (ia): -

"For and order restraining the defendant, its principal officers, family members, servants, agents, dealers, distributors and anyone acting for and on its behalf from trading and manufacturing in the seals business. This relief is valued for the purposes of court fee and jurisdiction at Rs.200/- and court fee of Rs.20/- is affixed hereto."

6. The learned Single Judge was guided largely by the general principle in holding that in considering the applications for amendments, the Court's approach should be liberal rather than a restricted one. He relied upon the Division Bench's ruling of this Court in Usha International and Another v. Usha Television Limited, 2002 (25) PTC 184 and thereafter, after extensively quoting the amendments sought by the plaintiff, proceeded to permit the amendment vide the impugned order. The learned Single Judge inter alia also observed that the defendant could not dispute about the family settlement as well as the order made by the Company Judge

FAO(OS)359/2013 Page 3 giving effect to it in C.P. No.67/1997. The only rationale for allowing the amendment was that: -

"13. The defendant possibly being a party cannot dispute about the family settlement as well as order passed in C.P. No.67 of 1997. As far as the merit of the said factum is concerned, the same has to be considered by the Court after examining the case of both the parties, but the amendment sought by the plaintiff in the application cannot be refused, as this Court is of the view that the said amendment sought by the plaintiff will not change the nature of the suit as well as cause of action. In view thereof, the present application is allowed. The amended plaint filed by the plaintiff is taken on record."

7. It was urged by the appellant that the plaintiff was the mere assignee of the mark and could not under the circumstances claim a wider right than was granted to him. Learned Senior counsel for the appellant urged that the right to carrying on any trade or occupation cannot be curtailed through an injunction and that such reliefs would in fact fall foul of the Section 27 of the Contract Act. Learned counsel for the plaintiff, on the other hand relied upon C.P. No.67/1997 and the family arrangement which entitled his assignor all rights to deal with the trade of seals as well as the right to the trade mark "SS".

8. It is apparent from the above narration that the plaintiff was an assignee and not party to the original family settlement of 1997. This fact was crucial and appears to have escaped the attention of the learned Single Judge who perhaps unwittingly allowed the relief which cannot be claimed in law, much less as a matter of right. The effect of the amendment, in the opinion of the Court, was not only to

FAO(OS)359/2013 Page 4 enlarge the framework of the suit but to bring in an untenable claim restraining one of the parties permanently from engaging in a particular kind of trade or occupation. It perhaps could have been a matter of debate if an assignor of the plaintiff moved a Court within a reasonable time seeking such a restraint order. However, the plaintiff being the assignee - overtly, acquiring the rights to the trademark in 2006, i.e., nine years after the event, could not have legitimately claimed a permanent injunction against the defendant (i.e. the appellant in this case) from engaging in manufacture, trading and carrying on the business of seals altogether. In the opinion of the Court, such claim would be even barred by law.

9. In the light of the above discussion, this Court is of the opinion that the amendments permitted through the impugned order cannot be sustained; they are accordingly set aside.

10. I.A. No.14658/2008 is accordingly directed to have been dismissed.

11. The appeal is allowed in the above terms. No order as to costs.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) AUGUST 12, 2013 /vks/

FAO(OS)359/2013 Page 5