M/S Symphony Ltd vs M/S Summer Cool Home Appliances ...
2016 Latest Caselaw 2581 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                   Date of decision: April 04, 2016
+       CS(OS) 729/2014, IAs 4662-4663/2014 & 20070/2015
        M/S SYMPHONY LTD                                     ..... Plaintiff
                                      Through:   Mr. R.K.Virmani, Sr. Adv.
                                                 with Mr. Kunal Mimani,
                                                 Adv.
                                      versus

        M/S SUMMER COOL HOME APPLIANCES PVT LTD &
        ORS                           ..... Defendants

                                      Through:   Mr. Ajay Sahni, Adv. with
                                                 Ms. Kanika Bajaj, Mr.
                                                 Sudhanshu Suman, Adv. for
                                                 D-1.
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.(Oral)

IA 20070/2015

1.

Vide this order, I shall dispose of IA 20070/2015 filed by the

plaintiff under Order VI Rule 17 read with Section 151 of the Code of

Civil Procedure, 1908.

2. Vide this application, the plaintiff seeks to delete paragraph 14 of

the plaint and substitute the same with the following paragraph.

"14. That prior to 2010, the Plaintiff had been using various registered designs of air coolers bearing nos.183511, 180555, 213308 and 213309, with the air cooler model under registered mark 'Sumo'. The Registrar has duly registered the unique design of the air cooler and granted it Design No.227069, w.e.f

04.02.2010. The Plaintiff started using the registered Design No.227069 for its model 'Sumo' from the month of November 2010, after its registration. The Plaintiff has been using the Registered Design Nos.235189 and 198241 for its air cooler models 'Storm' and 'Winter' since March 2011 and February 2005 respectively, after THEIR Registration."

3. Plaintiff further seek to add paragraph 14A in the plaint, which is

also reproduced as under:-

"14A. Over the years, the said models of the Plaintiffs air coolers have become the most popular air coolers sold in the marketplace, as demonstrated by the sales figures contained in the Plaintiffs audited annual reports, and reproduced hereunder:

Model                        Available      Units            Net Sales (Rs.)
                             since          Sold till
                                            date (All
                                            India)
Symphony                     March 2011     33,275           34,97,45,761
storm 7O with
Registered
Design
No.235189
Symphony                     February       3,27,146         2,38,30,62,830
Winter                       2005
with Registered
Design       No.
198241
Symphony Sumo                November       2,53,083         2,00,61,18,478
with Registered              2010
Design
No.227069

4. It is the submission of Mr. Virmani, learned Senior counsel for the

plaintiff, that the plaintiff, has, in the table in paragraph 14 of the plaint

mentioned that 'Symphony Sumo' is in use since the year 2003.

According to him, the trademark 'Symphony Sumo' which was in use

since the year 2003 and not the registered design No.227069. He would

also state, that the design No.227069 was used only after registration i.e.

in November, 2010. It is also his submission that prior to the said

registration of the design, the plaintiff was using various registered

designs bearing nos.183511, 180555, 213308 and 213309, with the air

cooler model under mark 'Sumo'. The first model of 'Symphony Sumo'

with the registered design No.227069 was sold on November 24, 2010.

According to him, the plaintiff inadvertently, in paragraph 14 of the

plaint did not explicitly bring out this position. He states, the Court, in

its order dated May 28, 2015 read the said paragraph to mean that the

design No.227069 was pre-published on the date of registration, which is

not true. He also states, that the plaintiff has also mentioned in the table

at paragraph 14 of the plaint that 'Symphony Winter' is in use since the

year 2004. The plaintiff submits that the design No.198241 was used

only after registration, i.e. in the year 2005. According to him, while the

plaint was being drafted, sales figures of 'Winter' from the financial year

2004-05 commencing from July 01, 2004 to June 30, 2005 were

provided to the Advocate. However, though 'Winter' model is available

since February 2005, due to oversight, the aforesaid mistake was not

noticed by the plaintiff. The fact is that, the first model of 'Winter' with

the registered design No. 198241 was sold on February 9, 2005 after its

registration effective from January 20, 2005. The plaintiff, has

inadvertently in para 14 of the plaint states that the design No. 198241 is

available since 2004, which is not true as figure shown in para 14 of the

plaint is for the entire year 2004-05. The Hon'ble Court passed its order

dated May 28, 2015 based on the observation that 'Winter' was pre-

published on the date of registration, which is not true. He states, that it

is a case of an inadvertent error, no trial has commenced, which

ordinarily be a bar for allowing the amendments. He also states, no

prejudice is going to be caused to the defendants by allowing these

amendments. He would rely upon the judgment of this Court in the case

reported as 2012 (VIII) AD (Delhi) 623 Ajay Batra vs. Y.P. Batra &

Ors. in support of his submission, more specifically para 11, to contend,

i) no injustice shall be caused to the other side; ii) being necessary for

purpose of determining the real question in controversy between the

parties as the amendments would not make the claim time barred; iii) the

nature of suit is not being altered; iv) the amendment would not take

away the legal right, which has accrued by lapse of time and v) the

amendments just clarifies an existing pleading.

5. On the other hand, Mr. Ajay Sahni, learned counsel appearing for

the defendants, would submit that the present application is nothing but

to resile from the admission made by the plaintiff in para 14 of the plaint,

which I reproduce as under:-

"14. That over the years, the said models of the Plaintiffs air coolers have become the most popular air coolers sold in the marketplace, as demonstrated by the sales figures contained in the Plaintiffs audited annual reports, and reproduced hereunder:

Model                        Available     Units            Net Sales (Rs.)
                             since         Sold till
                                           date (All
                                           India)
Symphony                     2004          3,27,146         2,38,30,62,830
Winter
Symphony                     2011          33,275           349,745,761
storm 70
Symphony Sumo                2003          563,935          3,678,307,634

6. According to him, the averments in para 14 of the plaint would

reveal that the reference to said models is, with regard to the design, the

registration as depicted in para 12 of the plaint. In other words, it is his

submission, that the reference to the said models, is with regard to the

design referred to against the said model in para 12. That apart, it is his

case, that if the amendments are allowed, that would be to the prejudice

of the defendants and also, the right, which has accrued to the defendants

for challenging the registration, obtained by the plaintiff would be

effected inasmuch under Section 19 and 22 of the Designs Act, given the

admission made by the plaintiff in para 14 of the pleadings, the

registration by the plaintiff of those designs can be challenged by the

defendants. He states, a reading of the plaint would show that the

plaintiff, has filed the suit on the basis of passing of and infringement of

design.

7. In rejoinder, Mr. Virmani would only submit that the submission

of Mr. Sahni that the suit is for passing of and infringement, is not

correct. It is primarily a case of passing of, of the design of the plaintiff

by the defendants.

8. Having heard the learned counsel for the parties, a careful perusal

of the averments made in paras 12 and 14, would reveal that in para 12,

plaintiff did refer to date of registration with respect to 'Symphony

Winter' and 'Symphony Sumo' as January 20, 2005 and February 4,

2010 respectively. No doubt, in para 14, the plaintiff has also referred to

the fact that the models 'Symphony Winter' and 'Symphony Sumo' were

available with effect from 2004 and 2003 respectively. A combined

reading of para 12 and 14 did give an impression that the models

'Symphony Winter' and 'Symphony Sumo' with regard to the respective

designs even though registered in 2005 and 2010, were in use since 2004

and 2003. It is this impression which is sought to be clarified by the

plaintiff through this amendment. In any case, whether the models

'Symphony Winter' and 'Symphony Sumo' were in use since 2004 and

2003 is a matter of evidence to be ascertained during the trial. So at this

stage it cannot be said that the averments made in the plaint is an

admission. The amendments have been sought on the premise that the

trademark Symphony Sumo was in use since 2003 and not the registered

design 227069. It is also premised that the plaintiff was using various

registered designs with air cooler model under mark 'Sumo'. The

plaintiff/applicant relies on a certificate of the Chartered Accountant, that

the model Sumo with design No. 227069 was sold on November 4, 2010.

9. Similar is the position with respect to the model 'Winter' that the

design no. 198241 was used only after registration. The submission of

Mr. Sahani that the averments in the plaint reveals an admission of the

fact that the models with the designs were in sale from 2004 and 2003

respectively is not appealing. An admission should be unequivocal that,

models with the design were available from the years 2004 and 2003.

But I note, the averments and the tabular representation in paras 12 and

14 can be read either way. By the amendments, the plaintiff seeks to

clarify the position.

10. The defendant would still be at liberty to prove the plaintiff wrong

in the trial by producing evidence in fact the models of 'Symphony

Winter' and 'Symphony Sumo' with same design, were available before

the registration of design. It is a settled law, while considering the

amendments sought, the merit of the amendments sought would not be

gone into. Further, to say that the right of the defendant under Section

19 and 22 of the design's Act would be effected in not appealing. If at

the end of the trial, the defendant still succeeds to establish its case, as

being argued now, the right under the said Section can still be invoked.

That would not be a ground available to the defendant at this stage.

11. In the judgment, referred to by Mr. Virmani, this Court in para 11

has held as under:-

"11. Before considering the present application, it will be important herein to reproduce order 6 rule 17 as under:

"17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

As is manifest from a bare reading of the above provision, the above rule confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. The rule goes on to provide that all such amendments as may be necessary for determining the real questions in controversy between the parties may be allowed. The Apex Court in Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil AIR1957SC363, while interpreting the said provision held that two conditions

need to be satisfied to allow the amendment sought which are (a) not working injustice to the other side, and (b)of being necessary for the purpose of determining the real questions in controversy between the parties. Hence to disallow the amendment the court has to be satisfied that the other party would be so affected by the amendment that it cannot be placed in the same position as before. It has also been held time and again that the an amendment would generally not be disallowed except where a time barred claim is sought to be introduced. Another guiding principle for allowing the amendment is that it has to be seen whether through the amendment the nature of the suit is sought to be altered. In Laxmidas Dahyabhai Kabarwala vs. Nanabhai Chunnilal Kabarwala AIR1964SC11 it was held that an amendment can be refused when the effect of it would be to take away from a party a legal right which had accrued to him by lapse of time, it may be so when fresh reliefs are added or fresh allegations put by way of an amendment, but where an amendment just clarifies an existing pleading and does not in any substance add to or alter to it , there is no good reason not to allow it. Capitulating, the aforesaid , the Supreme Court in Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & Ors., 2009(10)SCC84 laid down the broad factors to be taken into consideration while dealing with such a situation. The relevant para of the same is reproduced as under:

"67 On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."

Furthermore, it is also ingeminated that amendments cannot be claimed as a matter of right and under all circumstances, but the courts while granting such amendments cannot adopt a hypertechnical approach. However, the delay in filing the application for amendment can be compensated in terms of costs."

12. I allow this application. The amended plaint is taken on record.

The amended written statement be filed within four weeks. Replication

thereto be filed within two weeks thereafter.

13. List before Joint Registrar for further proceedings on 16th May,

2016.

(V.KAMESWAR RAO) JUDGE

APRIL 04, 2016 ak