Sandeep Tandon & Anr vs Pushpanjali N Rawat & Anr
2015 Latest Caselaw 5236 Del

Citation : 2015 Latest Caselaw 5236 Del
Judgement Date : 21 July, 2015

Delhi High Court

Sandeep Tandon & Anr vs Pushpanjali N Rawat & Anr on 21 July, 2015

Author: Hima Kohli

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 269/2013
       SANDEEP TANDON & ANR                      ..... Plaintiffs
                    Through : Ms. Isha Malhotra, Advocate

                         versus

       PUSHPANJALI N RAWAT & ANR                        ..... Defendants
                     Through : None.

     CORAM:
     HON'BLE MS. JUSTICE HIMA KOHLI
                   ORDER

% 21.07.2015 IA No.14324/2015 (u/O XXIII R-3 r/w Order XII R-6 CPC)

1. The plaintiffs have filed the accompanying suit against the

defendants praying inter alia that they be restrained from adapting the

plaintiffs‟ literary work as depicted on their website

"www.indianaccent.com" or infringing the plaintiffs‟ copyright in the

said literary work. Further, the plaintiff has prayed that the

defendants be restrained from using the plaintiff‟s mark "INDIAN

ACCENT" by adopting the same as a part of their corporate

name/trade name/trade style/domain name in any manner, including

opening a restaurant under the trade name, "INDIAN ACCENT".

2. On a perusal of the order sheets, it transpires that the plaint was

registered as a suit on 12.2.2013 and summons were issued to the

defendants and on the same day, an ex parte ad interim injunction

was granted in favour of the plaintiffs restraining the defendants from

reproducing, issuing copies, communicating to the public or making

any adaption of the plaintiffs‟ literary work as depicted on their

website www.indianaccent.com, including its source code or any

literary work substantially similar thereto or to do any other act which

infringe the plaintiffs‟ copyright in such literary work.

3. Vide order dated 1.5.2013, it was noted that summons sent to

both the defendants had been received back with a report of refusal.

Accordingly, the defendants were deemed to be served and as they

had failed to appear, the case was placed before the Court on

30.8.2013. On 30.8.2013, as the defendants had failed to file their

written statements, they were proceeded against ex parte and the

plaintiffs were directed to file their ex parte evidence on affidavit.

However, the affidavits have not been filed by the plaintiffs so far.

4. Counsel for the plaintiffs draws the attention of the Court to the

order dated 28.10.2013 passed by the learned Joint Registrar. On the

said date, the learned Joint Registrar had noted that a written

communication had been received from defendants No.1 & 2 by post,

wherein they had stated that they are residents of Australia since the

year 2008 and "have no plan, motive or intention to ever start any

business in India by contravening any laws being in force at that

time." The said communication was directed to be placed before the

Court for appropriate orders. Vide order dated 16.12.2013, the

aforesaid communication addressed by the defendants directly to the

Court was taken note of and the following order was passed :

16.12.2013

"The matter has been placed before the Court in view of the fact that a response has been received from the defendants directly by the Court within 30 days of service. In this response, the defendants have, inter alia, stated that they are residents of Australia since 2008 and "have no plan, motive or intention to ever start any business in India by contravening any laws being in force at that time". They have also stated that they cannot pay for legal advice as they are in Australia and certainly cannot afford to come to India to fight this battle. They have also to make their submissions in this response.

Learned counsel for the plaintiff submits that in view of the said response, the plaintiff wills try to get in touch with the defendants to arrive at an amicable settlement. Adjourned to 27.03.2014.

Considering the aforesaid, the plaintiffs need not file the affidavit by way of evidence till further orders."

5. Counsel for the plaintiffs states that pursuant thereto, efforts

were made by the plaintiffs to send e-mails to the defendant to settle

the dispute, including an e-mail dated 27.11.2014, and finally, vide e-

mail dated 25.8.2014, the defendants had informed the counsel for

the plaintiffs as below :

"We have unwillingly closed the restaurant Indian Accent, Pelican Waters, Qld-4551 and don‟t intend to open any other restaurant with same name in Australia or outside. We would like to be left alone as all these correspondence regarding this case since 2013 has caused us and our extended family in India, lot of stress, trauma and related health issues."

6. The aforesaid communication makes it apparent that the

defendants have shut down the restaurant that was being run by them

under the name "Indian Accent" and they are no longer infringing the

plaintiffs‟ mark "INDIAN ACCENT", which is subject matter of the

present suit.

7. Counsel for the plaintiffs adds that when the defendants had

sent an e-mail dated 27.11.2014 to the plaintiff, they had enclosed

therewith a copy of the „Contract Business Sale‟ dated 4.5.2014, which

indicates that the defendants have sold the restaurant business known

as "Indian Accent" at Brisbane to a third party. She submits that on

the basis of the aforesaid documents enclosed with the present

application, the plaintiffs are satisfied that the defendants are no