Delhi High Court
Burger King Corporation vs Gurpreet Singh Sekhon & Ors. on 7 November, 2016
$~18.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 959/2015
% Judgment dated 07thNovember, 2016
BURGER KING CORPORATION ..... Plaintiff
Through : Mr. Pravin Anand, Mr. Raunaq Kamath
and Ms. Anjana Ahluwalia, Advocates.
versus
GURPREET SINGH SEKHON & ORS. ..... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A. 13385/2016
1. This is an application filed under Order VIII Rule 10 of the Code of
Civil Code, 1908 by the plaintiff for passing of a decree of permanent
injunction in the default of the defendants to file written statement.
None is present on behalf of the defendants despite service.
2. Summons in the present matter were issued on 10.04.2015; on the same
date an ex parte ad interim injunction was also granted in favour of the
plaintiff and against the defendants. The defendants were duly served
and the defendants had also entered appearance through counsel on the
next date of hearing, i.e. 29.07.2015. Thereafter, none has appeared for
the defendants, nor has any written statement been filed on their behalf.
3. The plaintiff has filed the present suit for permanent injunction
restraining the infringement of trademark, passing off, rendition of
accounts, delivery up, damages etc. against the defendants. The
CS (OS) 959/2015 Page 1 of 18
plaintiff seeks protection of its trademarks „BURGER KING‟ and
„HUNGRY JACK‟S‟ and their logos, i.e. „ ‟ and „ ‟; it
further seeksprotection of its catchphrase „HAVE IT YOUR WAY‟.
4. As per the plaint, the plaintiff corporation was founded in 1954 when it
commenced its business with one restaurant in Miami, Florida, United
States trading under the name and style of „BURGER KING‟. The
plaintiff‟s very first advertisement was aired in 1958 on Miami‟s local
station while the plaintiff‟s first franchisee outlet was started in 1959.
Since its inception, the plaintiff had plans of global expansion and
opened its first „Burger King‟ restaurant outside the United States of
America in Puerto Rico in 1963. By 1967, the plaintiff already owned
and operated 275 „Burger King‟ restaurants. Owing to its swift
expansion, today the plaintiff manages and operates a worldwide chain
of over 13,000 fast food restaurants serving more than 11 million
customers daily in 100 countries and U.S. territories. The plaintiff
claims to be the second largest fast food hamburger company
employing more than 30,300 people. It had opened the first „Burger
King‟ franchisee restaurant in Asia in 1982 and there are currently over
1,200 of these restaurants in Asia-Pacific Region.
5. As per the plaint, the other chain of restaurants of the plaintiff is in the
name of „HUNGRY JACK‟S‟. The first such franchisee restaurant was
opened in Perth, Australia on 18.04.1971. Thereafter, the chain was
expanded rapidly and by 1981, the plaintiff had launched 26 „Hungry
Jack‟s‟ across three states in Australia; today, there are more than 340
stores across Australia.
CS (OS) 959/2015 Page 2 of 18
6. Accordingly, the plaintiff claims proprietary rights in the marks
„Burger King‟ and „Hungry Jack‟s‟ since the years 1954 and 1971
respectively.
7. As per the plaintiff, the plaintiff‟s „Burger King‟ mark has been
depicted in a variety of logos, which have acquired significant global
reputation and have come to be solely associated with the plaintiff. In
1969, the plaintiff adopted a logo comprising a depiction of a
hamburger enclosing its registered trade mark/ name „Burger King‟ in
red font. The same is referred to as the „Hamburger Design Logo‟,
which is as under:
8. The plaintiff also claims to have adopted the Hamburger Design Logo
in relation to its „Hungry Jack's‟ mark in 1971. The mark „Hungry
Jack's‟ is similarly represented in a logo comprising a depiction of a
hamburger enclosing the plaintiff‟s mark in red font; as shown below:
9. The plaintiff‟s trademarks are registered in its favor in over 122
countries of the world including 22 countries in the Asia Pacific and
South-East Asia regions including India. In India, the plaintiff is the
registered proprietor of the trade mark „Burger King‟ (word)since 1979.
The details of registrations in India are as under:
CS (OS) 959/2015 Page 3 of 18
Trade Mark Reg. No. Class Date Goods
Paper and paper products
BURGER KING 348560 16 25.04.1979 included in class 16,
printed matter
Meat, Fish, Milk and other
BURGER KING 348561 29 25.04.1979 dairy products, edible oils,
fats and pickles.
Coffee, tea, cocoa, sugar,
coffee substitutes, breads,
BURGER KING 348562 30 25.04.1979
pastry, ices, mustard,
pepper and sauces.
Beer, ale and porter,
mineral and aerated waters
and other non-alcoholic
BURGER KING 348563 32 25.04.1979
drinks, syrups and other
preparations for making
beverages
Paper goods and printed
matter, paper, cardboard
and goods made from
828558 16 20.11.1998 these materials including
BKCs packaging,
advertising, promotional
items.
Meat and processed foods,
meat, fish, poultry and
game, meat extracts,
preserved, dried and
828559 29 20.11.1998 cooked fruits and
vegetables, jellies, jams,
fruit sauces, eggs, milk
and milk products, edible
oils and fats, including
CS (OS) 959/2015 Page 4 of 18
meat, fish, poultry, eggs
used in sandwiches.
Staple foods, coffees, tea,
cocoa, sugar, rice, tapioca,
sago, artificial coffee,
flour and preparations
made from cereals, bread,
828560 30 20.11.1998 pastry and confectionery,
ices, honey, treacle, yeast,
baking powder, salt,
mustard, including bkcs
sandwich products and
coffee and tea drinks.
Light beverages, beers,
mineral and aerated waters
and other non-alcoholic
BURGER KING 828561 32 20.11.1998 drinks, fruit drinks and
fruit juices, syrups and
other preparations for
making beverages
BURGER KING 1494246 42 06.10.2006 Restaurant Services
Hamburger
sanwiches;chicken
sandwiches; fish
sandwiches; breakfast
sandwiches; bakery goods;
fruits pies; coffee, rice,
pasta; cereals and cereal
927122 30 31.03.2009 preparations; tea, coffee,
cocoa; coffee essence,
coffee extracts, mixtures
of coffee and chicory,
chicory and chicory
mixture, all for use as
substitutes for coffee; non-
medicated confectionery;
CS (OS) 959/2015 Page 5 of 18
pastries, cakes, biscuits,
ices, ice cream, ice cream
products, frozen
confections; chilled
desserts, mousses, sorbets;
bread; pastry; drinks,
fillings; sweet s
10. In addition to the aforegoing registrations in India, the plaintiff has also
been granted registration of the mark „Burger King‟ across the globe.
The mark „Hungry Jack‟s‟ has been granted registration in few
jurisdictions, excluding India. The details of international registrations
have been extracted in paragraph 10 of the plaint.
11. The plaintiff claims that its marks had achieved trans-border reputation
in India owing to their extensive use across the world even prior to their
introduction in India. The plaintiff has brand visibility in India through
trade shows (such as the USDA India Trade Mission 2009), presence of
their „Burger King‟ products in the embassy of the United States of
America in India, import of the samples under the mark BURGER
KING in India etc. Additionally, the Plaintiff has tie-ups with the
entertainment industry and its „Burger King‟ products/ brand have been
advertised in popular movies such as The Fantastic Four (2005),
Transformers (2007), Iron Man (2008), The Twilight Saga - New
Moon (2009) etc. These movies were released in India and the Indian
public was exposed to the products of the plaintiff carrying its
trademarks and logos. Further there are numrous write-ups about the
products of the plaintiff in publications having circulation in India.
12. The plaintiff further claims extensive online presence with the domain
name „www.burgerking.com‟ having been registered as far back as
14.11.1994. The plaintiff also owns the domains „www.bk.com‟ and
CS (OS) 959/2015 Page 6 of 18
„www.hungryjacks.com.au‟; which have lead to the marks gaining
tremendous goodwill in India.
13. As per the plaintiff, on account of the inclusion of „beef‟ in the
plaintiff‟s burgers, which in the Indian context would have previously
made the conduct of the plaintiff‟s business unviable, the plaintiff had
not launched a „Burger King‟restaurant in India till recently. However,
owing to globalization and transformation in the Indian development
and consequent to conducting exhaustive feasibility studies which have
indicated the readiness of the Indian market for the p laintiff‟s world-
renowned restaurants; in 2013, the p laintiff entered into a Joint Venture
with Everstone Group, a leading private equity and real estate firm in
India and South East Asia, to set up a supply chain in India and
establish „Burger King‟ restaurants across the country.The entry into
India received wide spread press coverage both in the form of articles
as well as through social media. The p laintiff‟s first Indian „Burger
King‟restaurant was opened in New Delhi on 09.11.2014. Since then,
the plaintiff has launched 4 more „Burger King‟ restaurants in New
Delhi/ NCR with an additional 5 „Burger King‟ restaurants operating in
Mumbai and has plans of further expansion with several more outlets
scheduled to open in India.
14. The plaintiff also claims that its „Burger King‟ restaurants generate
tremendous sales across the globe. The details of plaintiff‟s revenue
and promotional efforts have been extracted in paragraphs 19 and 20 of
the plaint.
15. In addition to the Hamburger Design Logos, the plaintiff has also
sought protection of its catchphrase/mark „Have It Your Way‟ which
was launched in 1973. Plaintiff has founded a US-based non-profit
foundation with multiple focuses on hunger alleviation, disease
CS (OS) 959/2015 Page 7 of 18
prevention and community education through scholarship programs at
colleges in the US known as the „Have It Your Way Foundation‟,
which has awarded millions of dollars worth of scholarships to students
in the last few years alone.
16. As per the documents placed on record, the slogan „Have It Your Way‟
was initially adopted in order to sum up the difference of the „Burger
King‟ chain with its prime rival „McDonald‟s‟. The slogan was later
abandoned in favour of other slogans, but the „Have It Your Way‟
slogan was returned in 2004 in TV advertisements of the plaintiff
corporation.
17. Accordingly, the plaintiff claims that owing to the long, continuous and
ubiquitous use of the „Burger King‟ (since 1954) and „Hungry Jack's‟
(since 1971) trademarks/ service marks, the Hamburger Design Logo
(since 1969) and the „Have It Your Way‟ catch phrase (since 1973),
coupled with extensive sales and promotional efforts, the plaintiff has
acquired significant common law rights in the said marks, logo and
catch phrase across the world including India and is, thus, entitled to
the exclusive use thereof.
18. It is the case of the plaintiff, that in December 2014, the plaintiff learnt
that the defendants had filed an application for registration of the mark
„ ‟ in Class 30 filed by defendants. Upon
investigation, the plaintiff claims to have learnt that the defendants
were planning to open a restaurant in Patiala, Punjab under the said
mark and the logo had been prominently displayed across the
defendants‟ premises as well as signages and promotional material.
CS (OS) 959/2015 Page 8 of 18
The defendants‟ were also using a similar catchphrase, i.e. „Have it
Kings Way‟.
19. The investigation also revealed that the defendants are operating a
website under the impugned domain name „www.hungry-king.com‟. A
visit to the defendants‟ website revealed that the impugned mark/ name
„Hungry King‟ and the impugned logo adopted by the defendants
was prominently displayed. The defendants‟ website is an interactive
one which allows visitors to purposefully avail of their services under
the impugned trading style of „Hungry King‟. A search of the Whois
Information Lookup Database conducted by the plaintiff confirmed that
the impugned domain name was created on 26.06.2013. The
defendants are also operating a page on the social media forum
„www.facebook.com‟ where it has prominently depicted a picture of its
packaging bearing the impugned mark and logo in conjunction with
the impugned catch phrase „Have It Kings Way‟.
20. The plaintiff had also sent a cease and desist notice by email on
18.02.2015, which has not been replied to; this has lead to the filing of
the present suit.
21. I have heard the learned counsel for the plaintiff and examined the
contents of the plaint which are duly supported by an affidavit of the
plaintiff and documents placed on record. Summons in the present suit
were issued on 10.04.2015, when an ad interim ex parte injunction was
also granted against the defendants. Thereafter, on the next date of
hearing 29.07.2015, the defendants had entered appearance through
counsel. Since 29.07.2015, none has been appearing on behalf of the
defendants. On 26.02.2016, this court observed that the defendants had
failed to file their written statement and adjourned the matter to enable
the plaintiff to file an application under Order VIII Rule 10. The
CS (OS) 959/2015 Page 9 of 18
plaintiff had even filed an application under Order XXXIX Rule 2A,
being IA 4645/2016, as the defendants had failed to comply with the
ad interim ex parte injunction granted by this court. The interim order
dated 10.04.2015 was also made absolute on 29.08.2016. On the same
date, it was noticed that the application bearing IA No. 4645/2016
could not be served and the service report stated „firm sold‟. Thereafter
on 01.09.2016, a local commissioner was appointed inspect the
premises of the defendants‟ and also remove all hoardings,
advertisements, etc. The report of the local commissioner is also on
record.
22. Recently, I had examined the scope of Order VIII Rule 10 of the Code
of Civil Procedure particularly in the background of the new
Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015 in Nirog Pharma Pvt. Ltd. v.
Umesh Gupta & Anr., CS (OS) 2517/2015 dated 21.10.2016. The
relevant paragraphs read as under:
"11. Order VIII Rule 10 has been inserted by the legislature to
expedite the process of justice. The courts can invoke its
provisions to curb dilatory tactic, often resorted to by
defendants, by not filing the written statement by pronouncing
judgment against it. At the same time, the courts must be
cautious and judge the contents of the plaint and documents on
record as being of an unimpeachable character, not requiring
any evidence to be led to prove its contents. ...
...
28. The present suit is also a commercial suit within the
definition of the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act, 2015
and it was the clear intention of the legislature that such cases
should be decided expeditiously and should not be allowed to
linger on. Accordingly, if the defendant fails to persue his case
or does so in a lackadaisical manner by not filing his written
statement, the courts should invoke the provisions of Order
VIII Rule 10 to decree such cases."
23. In the present case, the plaintiff is aggrieved by the adoption of the
mark „Hungry King‟ by the defendants which is claimed to be mix of
the two marks of the plaintiff, being „Hungry Jack‟s‟ and „Burger
King‟. The defendants have also imitated to Hamburger Design Logos
of the said marks. The catchphrase/slogan is also similar. To sum up,
the marks of the parties are as under:
Plaintiff's Marks Defendants' Mark
HUNGRYJACK'S + BURGERKING HUNGRY KING
+
HAVE IT YOUR WAY HAVE IT KINGS WAY
24. Additionally, the plaintiff claims that the adoption of the domain name
„www.hungry-king.com‟ amounts to an infringement of the registered
trademarks of the plaintiff, as detailed in paragraph 9 aforegoing. The
plaintiff has also submitted that the website is a slavish imitation of the
website of the plaintiff‟s website „www.hungryjacks.com.au‟. A
comparative analysis has also been given in paragraph 31 of the plaint.
25. I have perused the Report of the Local Commissioner dated
25.10.2016. The local commissioner had inspected the premises of the
defendants and learnt that the premises had been sold to one, Mr. J.P.
Arora, on 25.02.2016; who had since changed the name of the
restaurant to „Sabik‟ and had nothing to do with „Hungry King‟. All
the remaining banners, hoardings, advertisements have also been
defaced by the local commissioner.
26. The learned counsel has also handed over in a Judgment of the Punjab
and Haryana High Court being Gurpreet Singh Sekhon v. State of
Punjab, CRM No. M-36297/2014dated 19.11.2014; wherein
anticipatory bail was granted to defendant no.1 herein. In the said
judgment, the counsel for the defendant no.1 had mentioned that the
defendant nos 1 and 2 had initially planned to open a franchisee of the
plaintiff‟s „Burger King‟ restaurant only. Since the same did not
materialize for one reason or another, the defendants opened a
restaurant in the name of „Hungry King‟ and ran the same for about one
and a half years. The learned counsel has submitted that the same
clearly establishes the intention of the defendants to pass off their
products as that of the plaintiff.
27. It has been repeated held by the Supreme Court and this Court that in
proceeding under Order VIII Rule 10 of the Code of Civil Procedure,
the courts should not act blindly; but must consider the contents of the
plaint. It has been held in Balraj Taneja & Anr. v. Sunil Madan &
Anr., AIR1999SC3381that even a judgment passed on the failure of
the defendant to file its written statement, the requirements of Order
XX Rule 4(2) should be fulfilled. This has been reiterated numerous
times and recently in C.N. Ramappa Gowda v.C.C. Chandregowda
(Dead) by L.Rs. and Anr., (2012)5SCC265.
PASSING OFF
28. Passing Off action arises out of common law and is not pre-conditioned
on registration. The term „passing off‟ was explained by James, L.J. in
Singer Manufacturing Co. v. Loog, (1880) 18 ChD 395 as under:
"...I have often endeavoured to express what I am going to
express now (and probably I have said it in the same words,
because it is very difficult to find other words in which to
express it) -- that is, that no man is entitled to represent his
goods as being the goods of another man; and no man is
permitted to use any mark, sign or symbol, device or other
means, whereby, without making a direct false representation
himself to a purchaser who purchases from him, he enables
such purchaser to tell a lie or to make a false representation to
somebody else who is the ultimate customer."
(Emphasis Supplied)
29. Lord Diplock in Erven Warnink Besloten Vennootschap v. J.
Townend & Sons (Hull) Ltd.,[1979] A.C 731 had identified five
essentials to establish an action of passing off. The relevant excerpt is
as under:
"My Lords, A.G Spalding and Brothers v. A. W. Gamage Ltd.,
84 L.J.Ch 449, and the later cases make it possible to identify
five characteristics which must be present in order to create a
valid cause of action for passing off: (1) a misrepresentation,
(2) made by a trader in the course of trade, (3) to propsective
customers of his or ultimate consumers of goods or services
supplied by him, (4) which is calculated to injure the business
or goodwill of another trader (in the sense that this is a
reasonably foreseeable consequence) and (5) which causes
actual damage to a business or goodwill of the trader by whom
the action is brought or (in a quia timet action) will probably
do so."
(Emphasis Supplied)
30. The aforegoing essentials have been accepted by the Supreme Court in
Cadila Health Care Ltd.v.Cadila Pharmaceuticals Ltd., (2001) 5 SCC
73 and Heinz Italiav. Dabur India Ltd., (2007) 6 SCC 1. In Cadila
Health Care Ltd. (Supra), the Supreme Court had further laid down
the following decisive tests for checking deceptive similarity:
"35. Broadly stated, in an action for passing-off on the basis of
unregistered trade mark generally for deciding the question of
deceptive similarity the following factors are to be considered:
(a) The nature of the marks i.e. whether the marks are
word marks or label marks or composite marks i.e.
both words and label works.
(b) The degree of resembleness between the marks,
phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they
are used as trade marks.
(d) The similarity in the nature, character and
performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the
goods bearing the marks they require, on their
education and intelligence and a degree of care they
are likely to exercise in purchasing and/or using the
goods.
(f) The mode of purchasing the goods or placing
orders for the goods.
(g) Any other surrounding circumstances which may
be relevant in the extent of dissimilarity between the
competing marks.
36. Weightage to be given to each of the aforesaid factors
depending upon facts of each case and the same weightage
cannot be given to each factor in every case."
(Emphasis Supplied)
31. In the present case, the mark of the defendants is extremely similar to
the marks of the plaintiff. Infact, it is a blend of the two marks of the
plaintiff. The same is further aggravated by the fact that the
Hamburger Design Logo has also been copied. A comparison of the
marks has already been given in paragraph 23 aforegoing. In order to
further potray their products as that of the plaintiff, the defendants have
even adopted a slavish imitation of the slogan of the plaintiff.
32. Accordingly, applying the aforegoing test I am of the view that the
defendants have tried to dupe the general public by portraying their
products in a manner that they originate from the plaintiff. Such usage
would inevitably lead to loss of revenue as also that of goodwill.
Accordingly, the defendants have indulged into the offence of passing
off.
33. Having held that the defendants have committed the act of passing off,
the only other issue which remains in the present suit is damages.
34. A coordinate bench of this court in the case of Relaxo Rubber Limited
& Anr.v.Selection Footwear & Anr., AIR2000 Del 60 which while
granting injunction also granted damages under Order VIII Rule 10 in a
case for infringement of copyright and trade mark.
PUNITIVE DAMAGES
35. With regard to the relief of damages as claimed by the plaintiffs in
paragraph40 g) of the plaint, the plaintiffs relied in Time Incorporated
v. Lokesh Srivastava & Anr., 2005 (30) PTC 3 (Del): 2005 (116) DLT
599, while awarding punitive damages of Rs. 5 lakhs in addition to
compensatory damages also of Rs. 5 lakhs, Justice R.C. Chopra
observed as under:
"8. This Court has no hesitation on saying that the time has
come when the Courts dealing actions for infringement of
trade marks, copy rights, patents etc. should not only grant
compensatory damages but award punitive damages also with
a view to discourage and dishearten law-breakers who indulge
in violations with impunity out of lust for money so that they
realise that in case they are caught, they would be liable not
only to reimburse the aggrieved party but would be liable to
pay punitive damages also, which may spell financial disaster
for them. In Mathias v. Accor Economy Lodging Inc., 347 F.3d
672 (7th Cir. 2003) the factors underlying the grant of punitive
damages were discussed and it was observed that one function
of punitive damages is to relieve the pressure on an
overloaded system of criminal justice by providing a civil
alternative to criminal prosecution of minor crimes. It was
further observed that the award of punitive damages serves the
additional purpose of limiting the defendant's ability to profit
from its fraud by escaping detection and prosecution. If a
torfeasor is caught only half the time he commits torts, then
when he is caught he should be punished twice as heavily in
order to make up for the times he gets away.This Court feels
that this approach is necessitated further for the reason that it
is very difficult for a plaintiff to give proof of actual damages
suffered by him as the defendants who indulge in such
activities never maintain proper accounts of their transactions
since they know that the same are objectionable and unlawful.
In the present case, the claim of punitive damages is of Rs. 5
lacs only which can be safely awarded. Had it been higher
even, this Court would not have hesitated in awarding the
same. This Court is of the view that the punitive damages
should be really punitive and not flea bite and quantum thereof
should depend upon the flagrancy of infringement."
(Emphasis Supplied)
36. This Court in the case of Microsoft Corporation v. Rajendra Pawar &
Anr., reported at 2008 (36) PTC 697 (Del.), has held:
"22. Perhaps it has now become a trend of sorts, especially in
matters pertaining to passing off, for the defending party to
evade Court proceedings in a systematic attempt to jettison the
relief sought by the Plaintiff. Such flagrancy of the Defendant's
conduct is strictly deprecatory, and those who recklessly
indulge in such shenanigans must do so at their peril, for it is
now an inherited wisdom that evasion of Court proceedings
does not de facto tantamount to escape from liability. Judicial
Process has its own way of bringing to task such erring parties
whilst at the same time ensuring that the aggrieved party who
has knocked the doors of the Court in anticipation of justice is
afforded with adequate relief, both in law and in equity. It is
here that the concept of awarding punitive damages comes
into perspective.
23. Punitive damages are a manifestation of equitable relief
granted to an aggrieved party, which, owing to its inability to
prove actual damages, etc., could not be adequately
compensated by the Court. Theoretically as well as
practically, the practice of awarding of punitive damages may
be rationalized as preventing under-compensation of the
aggrieved party, allowing redress for undetectable torts and
taking some strain away from the criminal justice system.
Where the conduct of the erring party is found to be
egregiously invidious and calculated to mint profits for his
own self, awarding punitive damages prevents the erring party
from taking advantage of its own wrong by escaping
prosecution or detection."
(Emphasis Supplied)
37. A coordinate bench of this court in the case of The Heels v. Mr. V.K
Abrol and Anr., CS(OS) NO.1385 of 2005 decided on 29.03.2006has
held:
"11. This court has taken a view that where a defendant
deliberately stays away from the proceedings with the result
that an enquiry into the accounts of the defendant for
determination of damages cannot take place, the plaintiff
cannot be deprived of the claim for damages as that would
amount to a premium on the conduct of such defendant. The
result would be that parties who appear before the court and
contest the matter would be liable to damages while the
parties who choose to stay away from the court after having
infringed the right of the plaintiff, would go scotfree. This
position cannot be acceptable.
12. No doubt it is not possible to give an exact figure of
damages on the basis of actual loss, but certain token amounts
on the basis of the sales of the plaintiff can certainly be made.
The plaintiff is unnecessarily dragged into litigation and the
defendants must bear consequences thereof. In fact in such a
case both compensatory and punitive damages ought to be
granted apart from the costs incurred by the plaintiff on such
litigation.In view of the given sales figure of the plaintiff, I
consider it appropriate to grant a decree of damages in favor
of the plaintiff and against the defendants for a sum of Rs 3
lakh apart from costs of the suit."
38. In view of the facts of the present case, this Court is of the opinion that
in the present case rupeestwo lakhs as punitive damages be granted in
favour of the plaintiff and against the defendant in terms of 26 (h) of
the plaint.
39. Resultantly, having been satisfied with the averments made and duly
supported by documents, report of the local commissioner and no
written statement being on record, I deem it a fit case to for invoking
the provisions of Order VIII Rule 10 of the Code of Civil Procedure.
40. Accordingly, the present suit is decreed in favour of the plaintiff and
against the defendants in terms of paragraphs 40b), c) and f) along with
damages of rupeestwo lakhs. No other relief is pressed.
41. I.A. 13385/2016 stands disposed of.
I.A. 4645/2015 (under Order XXXIX Rule2A CPC)
42. In view of the judgment passed in the suit, the application stands
disposed of.
G.S.SISTANI, J
NOVEMBER 07, 2016
//pst
