Aditya Birla Nuvo Limited vs M/S R.S Sales Corporation & Anr
2015 Latest Caselaw 4062 Del

$~A-21
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: MAY 20, 2015

+     CS(OS) 1235/2013

      ADITYA BIRLA NUVO LIMITED               ..... Plaintiff
                     Through Mr.Ajay Sahni, Advocate.
                     versus
      M/S R.S SALES CORPORATION & ANR         ..... Defendants
                     Through Mr.B.P.Singh Dhakray and Mr.Shakti
                             Singh Dhakray, Advocates.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(Oral)
Crl. M.A. 11985/2014
1.    This is an application filed under Section 340 of the Cr.P.C. for
initiating criminal proceedings under the said provisions against the
plaintiff/defendants and its six senior officers and two counsel appointed by
this court as Local Commissioners to visit the premises of the defendants
vide order dated 17.06.2013.
2.    The present suit is filed for perpetual injunction to restrain the
defendants from using, stocking, advertising, etc or dealing in clothing,
footwear, head gear or any other allied goods under the impugned trade
mark "PETER ENGLAND". Other connect reliefs are also sought. The
matter came up before this court on 17.06.2013 when this court passed an ex
parte injunction restraining the defendants from selling/marketing its
product by using the mark "PETER ENGLAND". Ms. Cauveri Birbal and
Mr.Ankan Suri, Advocates were appointed to visit the premises of the




CS(OS) 1235/2013                                           Page 1 of 7
 defendants, to make an inventory of the articles/products with the trade mark
"PETER ENGLAND", to seize the same and return them to the defendants
on supardari with an undertaking to produce the same in court. The Court
Commissioners were to also sign the books of accounts of the defendants.
3.    In the present application, it is contended that the accused persons
have shown a turnover of Rs.2500 crores in the plaint but they are non-user
of footwear and shoes which fact has been deliberately concealed in the
plaint. Hence, they have caused perjury and have obtained interim orders
from this court against the applicants who have a legal registered trade mark
and copyright registration for the phrase "PETER ENGLAND (VIP
SHOES)" The applicants further urges that the accused persons have
suppressed that they have only been given trade mark "PETER ENGLAND"
in the name of Indian Rayon and Industries who is not even a plaintiff.
4.    Learned counsel appearing for defendant No.1 who has filed this
application was asked to point out the false or fabricated statements which
have been made on oath by the plaintiff. Learned counsel replied upon the
para A of the plaint which urges as follows:-
      "A. The plaintiff is a part of the Aditya Birla Group of
      Companies and is the subsequent proprietor of the registered
      trade mark PETER ENGLAND registered under no.665416
      since 12.05.1995 in class 25 in respect of „clothing, footwear,
      headgear‟ and the said registered trade mark is valid and
      subsisting till date. The plaintiff itself and through its
      predecessors has atleast since the year 1997 been selling its
      readymade apparels and accessories bearing the registered trade
      mark PETER ENGLAND for a value of more than rupees 2,500
      crores till date."

5.    In my opinion, the above portion is of no help to defendant No.1. It




CS(OS) 1235/2013                                            Page 2 of 7
 merely states that the plaintiff has a registered trade mark in Class 25 which
relates to clothing, footwear, headgear. It also states that it has a turnover of
Rs.2500 crores in readymade apparels and accessories. There is no averment
to claim that there is any turnover of footwear using the said mark "PETER
ENGLAND".
6.    Learned counsel for defendant No.1 was requested to show the
registration certificate of defendant No.1 of the mark "PETER ENGLAND".
All that he could show was an application made to the Trade Mark Registry
for the brand "PETER ENGLAND VIP SHOES". He also showed a
registration under the Copyright Act. He admits that there is no trade mark
registration of the mark "PETER ENGLAND" in favour of defendant No.1.
7.    The frivolous manner in which the present application is filed is also
apparent from the fact that starting from the Chairman of the Aditya Birla
Group down to even the learned advocates of this Court appointed as Local
Commissioners this court have been impleaded as respondents.

8. In my opinion on the face of this application itself, the defendants have been unable to show any false statement made on oath and fabrication of evidence or any deceit by the plaintiff. The application is wholly devoid of merits and is dismissed.

IA No. 17087/2013 (u/O 1 R 10 CPC)

9. This application is filed by the plaintiff for impleading M/s S.S. Sales Corporation, Jaipur as defendant No.3. It is averred that it has come to the knowledge of the plaintiff after filing of the suit that in order to circumvent the injunction order of this court, defendant No.1 has transferred all his infringing goods to his sister concern/stockist, namely, M/s.S.S. Sales Corporation who is now engaged in selling the said products using the

impugned trade mark despite the stay order. Reliance is placed on a sale made on behalf of M/s.S.S. Sales Corporation to M/s Kishore & Co., Jaipur vide an invoice No. 164 dated 14.10.2013. Hence, it is urged that the said S.S. Sales Corporation be impleaded as a party and the ex parte injunction be extended to the said entity.

10. Learned counsel appearing for the proposed defendant has vehemently opposed the present application. He has made three submissions to oppose his impleadment. He firstly submits that this is a regular tactic of the plaintiff. What the plaintiff wants to do is to implead all and sundry who are dealing with PETER ENGLAND VIP SHOES in this suit itself which is an abuse of the process of law. He secondly submits that the appropriate course for the plaintiff would be to file a suit against the present proposed defendant in Jaipur, where the said defendant is based. He submits that in order to cheat the public exchequer and save court fees, the plaintiff have chosen to instead take a short cut and file the present application and seek impleadment of the proposed defendant. It is lastly submitted that the proposed defendant has no connection whatsoever with defendants No. 1 and 2. It is admitted that the proposed defendant is dealing in goods with the trade mark PETER ENGLAND VIP SHOES. However, he submits that these shoes are being purchased from various stock dealers, manufacturers, etc. from Agra but not from defendants No. 1 and 2. It is admitted that the proposed defendant has dealing with the other defendants but the dealing does not pertain to the goods using the mark PETER ENGLAND. One invoice is attached as Annexure-1 to its reply where it is pointed out that there is no reference to PETER ENGLAND goods.

11. Learned counsel for the plaintiff has in rejoinder taken this court

through Annexure-A to the application which is issued by the proposed defendant No. 3 in favour of one M/s Kishore & Co., Jaipur on which bill there is a logo of "PETER ENGLAND VIP SHOES". He has also placed reliance on Annexure-B to the application which shows the visiting card of the proposed defendant No. 3 and shows that proposed defendant is dealing with the products PETER ENGLAND VIP SHOES.

12. From the invoice placed on record by the plaintiff and the submissions of the proposed defendant No. 3, it is clear that proposed defendant No. 3 is dealing with the trade mark PETER ENGLAND though allegedly using the mark PETER ENGLAND VIP SHOES only. The issue is as to whether the said proposed defendant No. 3 has any connection with defendants No. 1 and would be a necessary and proper party to be impleaded in the present suit.

13. A question was posed to the learned counsel for the proposed defendant as to why he has not filed invoices and list of dealers from whom he is trading in Agra for purchase of the products PETER ENGLAND VIP SHOES. In fact, it was suggested to learned counsel for the proposed defendant No. 3 that defendant No. 3 should place on record an affidavit stating sources from where the shoes are being purchased. There was no response from the learned counsel for the proposed defendant No. 3.

14. It is clear from the reply filed by the proposed defendant No. 3 that there is ambiguity and vagueness in the stand of defendant No.3. In any case, it is the allegation of the plaintiff that proposed defendant No. 3 has a connection with defendant No.1 and is a dealer of defendant No.2. It would be for the plaintiff to prove these averments. The denial of the proposed defendant No. 3 to these averments of the plaintiff prima facie lacks bona

fide.

15. As far as the stand of the proposed defendant No. 3 that the appropriate remedy of the plaintiff would be to file a separate suit against defendant No.3 is concerned, this stand appears to be misplaced

16. We may also look at Order I Rule 10 CPC. Order I Rule 10(2) CPC which reads as follows:-

"(2) Court may strike out or add parties--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

17. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992)2SCC524 the Supreme Court held as follows:-

"The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights."

18. Accordingly, in my opinion the proposed defendant No. 3 prima facie has a nexus to defendant Nos. 1 and 2. He is a necessary and proper party to

the present proceedings. The application is allowed and M/s S.S.Sales Corporation is impleaded as defendant No.3. The said defendant No.3 would also remain bound by the interim orders passed this court on 17.06.2013.

19. The application stands disposed of.

CS(OS) 1235/2013 List on 29.10.2015.

JAYANT NATH, J.

MAY 20, 2015 rb