Godfrey Phillips Inida Limited vs P.T.I. Private Limited & Ors.
2018 Latest Caselaw 2149 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(COMM) No. 851/2017

%                                                       6th April, 2018

GODFREY PHILLIPS INIDA LIMITED              ..... Plaintiff
                   Through: Ms. Anuradha Salhotra with
                            Mr. Sumit Wadhwa, Advs.
                          versus

P.T.I. PRIVATE LIMITED & ORS.                           ..... Defendants

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         YES


VALMIKI J. MEHTA, J (ORAL)

IA No.4471/2018 (exemption)

1.           Allowed, subject to all just exceptions.

             Application stands disposed of.

Rev.Pet.141/2018 (Review of the order dated: 22.12.2017)

2.           This Review Petition is filed by the plaintiff for seeking

review of the judgment passed by this Court on 22.12.2017. By the

detailed judgment dated 22.12.2017 running into 22 pages, the suit of

the plaintiff was dismissed at the threshold by observing and holding

that the plaintiff has no real prospect of succeeding, and which aspect



Rev.Pet.141/2018 in CS(COMM) No. 851/2017                 Page 1 of 11
 this Court considered in view of the fact that the subject suit was a

commercial suit under the Commercial Courts, Commercial Division

and Commercial Appellate Division of the High Courts Act, 2015.


3.           This review petition is predicated in terms of the order

passed by Division Bench of this Court on 12.3.2018 in

RFA(OS)(COMM) No. 7/2018. This order dated 12.3.2018 reads as

under:-

             "It is submitted that the plaintiff had filed a previous suit - Suit
      No.1228/2016 against one Pelican Tobacco Company Limited and that
      suit, which is a subject matter of the present appeal - CS (COMM)
      851/2017 [hereafter "the subsequent suit‟], was mistakenly filed by its
      authorized investigator. According to the appellant‟s counsel, the
      subsequent suit was filed under mistaken belief since PTI was in reality
      "Pelican Tobacco Company Limited", a fresh cause of action arose which
      necessitated another suit.
              The appellant/plaintiff seeks to have urged about the pendency of
      another proceeding. However, there is no clarity as to the nature of the
      proceeding and whether it concerned the same party. The appellant asserts
      that it was under the impression, though mistaken, that PTI and Pelican
      Tobacco Company Limited were two different entities.
              In these circumstances, the Court is of the opinion that the
      appellant should first approach the learned Single Judge in review
      proceedings.
              Learned counsel for the appellant seeks to withdraw the appeal and
      approach the learned Single Judge with a review petition.
              Liberty granted.
              The appeal is accordingly dismissed as withdrawn along with the
      pending applications."


4.           In view of the order of the Division Bench, I have heard

the counsel for the review petitioner, however the review petition in




Rev.Pet.141/2018 in CS(COMM) No. 851/2017                        Page 2 of 11
 the opinion of this Court has to be dismissed and is accordingly

dismissed for the reasons contained hereinafter.


5.             The grounds which are stated in this review petition are

four in number and these are Grounds A to D as stated in para 3 of the

Review Petition. These Grounds A to D read as under:-

        "A.     Because there is a discovery of new and important matter or
        evidence. The Petitioner has discovered that there is no company
        registered by the name of P.T.I. Pvt. Ltd. i.e. Respondent No.1, in the

records of the Registrar of Companies and the address given by the Respondent No.1 on its packaging is an open piece of land. The impugned packaging is being manufactured by Pelican Tobacoo Company Limited against which the Petitioner has already initiated an action and an injunction is in operation.

B. In the circumstances two cognate benches of this Hon‟ble Court have given two different findings on the same cause of action which is a clear error apparent on the face of the record.

C. The dismissal of the suit on the basis of Order XIIIA of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 is contrary to the decision of the Hon‟ble Division Bench in the case of Bright Enterprises Private Ltd. and Ors. vs. MJ Bizcraft LLP and Ors. (MANU/DE/0017/2017). Copy of order is annexed herewith and marked as "Annexure A-12". D. Because the findings of the present suit will directly impact the pending suit CS(Comm.) 1228/2016 filed against the said party and will cause grave injustice to the Petitioner which is at the stage of evidence."

6.(i) The first ground which is urged for reviewing of the

judgment dated 22.12.2017 is that the defendant no.1 in the present

suit i.e P.T.I. Private Limited is a non-existent company as found from

the records of the Registrar of the company.

(ii) As regards this first ground, in my opinion, this cannot be a

ground for review because a review under Section 114 CPC read with

Order XLVII CPC is only on merits of the matter decided whereby it

is found that the judgment contained an error apparent on the face of

record. It is noted that the suit was dismissed at the stage of admission

without issuing summons to the defendant and therefore the Court

presumed the existence of the four defendants in the suit for passing

the impugned judgment and taking as correct the averments made in

the plaint and the documents filed. Therefore, the existence or non-

existence of a particular defendant as an entity, has no bearing on the

merits of the matter which was decided in terms of the judgment dated

22.12.2017 and which was decided without even issuing of any

summons to the defendant.

7. Also in my opinion, this ground urged for review is

essentially a ground by an unsuccessful plaintiff to question the

detailed judgment dated 22.12.2017 simply because the review

petitioner/plaintiff has filed another suit being CS(COMM) No.

1228/2016 against one Pelican Tobacco Company Limited, and in

which suit the plaintiff is said to have a confirmed interim order with

respect to issues which were also raised in the present suit i.e

effectively it is the case that the judgment passed in this suit will effect

the merits of the earlier suit in which plaintiff has a confirmed

injunction order.

8.(i) In my opinion, the existence of an interim order in

another suit does not prevent any other Court from finally deciding a

suit on merits because an interim order does not operate as res

judicata and nor as a ratio of a final judgment. It is only a final

judgment which can operate as res judicata or be a ratio on law for

subsequent courts, and that too depending on the facts of each case.

(ii) It is important to note that a convenient ground urged of the

defendant no.1 non-existing is not something new and material for a

review petition because in the plaint para 19, the plaintiff has already

stated that plaintiff could not locate any office or manufacturing unit

at the address of the defendant no.1 as mentioned on the packet i.e at

B-19, Kosikalan, Uttar Pradesh, and therefore in effect the plaintiff

knew that there would be no entity which would be existing being the

defendant no.1. In fact non-existence of entities is very much a fact in

many IPR matters because a non-existent entity manufactures or sells

counterfeit goods, and therefore suits are filed against unknown

entities by aggrieved plaintiffs who are IPR owners, and the unknown

entity or person etc is commonly referred to as John Doe. Para 19 of

the suit plaint reads as under:-

"19. Immediately upon preliminary knowledge based on the market survey in Delhi, the plaintiff conducted further investigation to verify the details of Defendant No.1, who is believed to be the manufacturer of the infringing products. However, the Plaintiff could not locate any office or manufacturing unit at the address as mentioned on the packet i.e. at B-19, Kosikalan, Uttar Pradesh. The Plaintiff, however, learned from the market survey that the infringing products are distributed and sold in Delhi markets flagrantly. The Plaintiff verily believes that the infringing products are distributed and sold by all the defendants in connivance and the Defendants have deliberately not disclosed the mandatory details on the packaging to avoid legal actions and sanctions. It is submitted that the actual relationship between the Defendants and the details of the manufacturer would be disclosed during the course of proceedings and the Plaintiff reserves the right to amend the pleadings accordingly at that stage of the proceedings. Furthermore, the Plaintiff conducted a physical survey at the address mentioned at the packaging of the address on the packaging of the product however, shockingly as per the physical verification there does not exist any such address. Also, no details can be found on the online portal of MCA re Defendant No.1. a general online search mentions a registration of FUN GOLD (Word) in favour of Pelican India Tobacco Private Limited under No.1671950." (underlining added)

9. Therefore the first ground which is urged for reviewing of

the judgment dated 22.12.2017 is completely baseless and unjustified

not only as not being available as a ground for review as an error

apparent on the face of record under Section 114 CPC read with Order

XLVII CPC, but also that even on facts of allegedly only now coming

to know of non-existence of defendant no.1 is factually incorrect as

this ground is already averred/stated in para 19 of the plaint.

10. The second ground on the basis of which review has been

urged is that there are two cognate benches of this Court which have

given two different findings on the same issues and cause of action,

and as per the plaintiff therefore is an error apparent on the face of the

record. In my opinion, however this ground is misconceived because

a judgment being 'wrong' cannot be a ground for filing a review

petition because a judgment being 'wrong' is not an error apparent on

the face of the record. If a judgment is pleaded to be wrong then it

would be only in the realm of the jurisdiction of the appellate court to

hold the judgment to be wrong. What is in the realm of the jurisdiction

of the appellate court to set aside a judgment on the ground that the

judgment is wrong does not fall within the purview of review

jurisdiction because taking of one possible view cannot said to be a

basis for contending that the view taken is wrong and therefore is an

error apparent on the face of the record. Therefore it is held that the

second ground urged to review the judgment dated 22.12.2017 is also

misconceived, and is rejected.

11. The third ground is raised on the basis of a judgment

passed by the Division Bench of this Court in the case of Bright

Enterprises Private Limited & Ors. vs. MJ Bizcraft LLP and Ors.

2017 (69) PTC 596 (Del) (DB) and which ground again would be

liable to be rejected for the selfsame reasons given while rejecting

Ground „B‟ as by this ground effectively the judgment passed by this

Court is sought to be appealed before this Court itself and which is not

permissible. In any case it needs to be observed that the principle of

summary judgment under Order XIIA CPC can be invoked by the

Court even suo moto when a suit comes up for admission because the

principle of notice by an application of 30 days is only when a

defendant has appeared in a suit and not before. Surely what can be

done after the defendant appears can well be done at the stage of

admission of the suit. Intention of legislature for dismissing suits

which have no real prospect of succeeding cannot be truncated for

being invoked only after the defendant appears in the suit because

otherwise the very object of brining in the procedure of summary

judgment applying Order XIIA CPC will be defeated. Technicalities

have to yield before the intention of the legislature in bringing in a

legal provision for not unnecessarily continuing commercial suits

which have no real prospect of succeeding.

12. The last ground which is urged is of the judgment passed

by this Court on 22.12.2017 having direct negative impact on the suit

being CS(COMM) No. 1228/2016 filed by the plaintiff, however I

have failed to understand this ground both on merits as also as a basis

for seeking review because so far as any impact of the present suit on

CS(COMM) No.1228/2016 is concerned, the same will be the

consequence of law and it cannot be argued by the plaintiff in an

unsuccessful suit to contend that the judgment should not be passed

although the judgment could be and has been passed on the merits of

the matter. Obviously, as already stated above the object of the

plaintiff is only to set aside the judgment passed by this Court on

22.12.2017 effectively on merits, and which is not within the purview

of a review petition once the judgment dated 22.12.2017 is a detailed

judgment giving reasons for dismissal of the suit.

13. No other ground is pleaded for review of the judgment

dated 22.12.2017 as discussed above, however I also observe that a

contention is urged that earlier suit was filed by the agent of the

plaintiff without instructions, but in the opinion of this Court this

ground is not a ground for review of a judgment once admittedly the

agent who filed the present suit CS(COMM) No. 851/2017 was in fact

duly authorized to initiate judicial proceedings. In my opinion, the

review petition is only an unjustified endeavour to put blame on the

earlier agent and to create a some sort of handle for seeking to set

aside the judgment dated 22.12.2017.

14. At this stage, I would also like to reiterate what is

observed in para 14 of the impugned judgment dated 22.12.2017

where it is observed that in IPR matters many businessmen endeavour

to somehow or the other create monopoly for its products by stifling or

extinguishing competition, and accordingly this Court while

dismissing the suit had observed that commercial morality principle is

not only applicable qua the defendant in a suit but is also equally

applicable to the plaintiff in a suit. If courts started giving exclusive

entitlement of one or two colors or their combinations to some

manufacturers, then once there exists few dozen manufacturers selling

their products as per ordinary colour combinations, then no one else

will be able to use any colour for his/its packaging or trade dress.

15. In view of the aforesaid discussion, there is no merit in

the review petition. Dismissed.

APRIL 06, 2018                              VALMIKI J. MEHTA, J
ak