Delhi High Court
Lotus Herbals Limited vs The Chief Commissioner Of Custom & ... on 2 February, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 110/2016
LOTUS HERBALS LIMITED ..... Plaintiff
Through Mr.Mohan Vidhani with
Mr.O.P.Bansal and Mr.Ashish
Singh, Advocates.
versus
THE CHIEF COMMISSIONER
OF CUSTOM & ORS ..... Defendants
Through Ms.K.Enatoli Sema, Advocate for
D-1.
Ms.Anjali J.Manish with
Ms.Nidhi Saini, Advocates for
D-2.
% Date of Decision: 02nd February, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for permanent injunction restraining
infringement of trade mark, copyright, passing off, rendition of accounts,
directions etc.
2. Learned predecessor of this Court vide order dated 19 th
September, 2013 had restrained the defendants from selling any goods
under the trademark LOTUS or any mark bearing the word LOTUS
either as a suffix or prefix.
3. Today learned counsel for defendant no.2 reiterates that defendant
no.2 had placed an order for unbranded goods with defendant no.3. She
admits that in the import consignment, certain branded goods bearing the
marks LAKME, MAC and LOTUS have been found. She however
states that the defendant no.2 has not got any branded goods released
from the customs. She points out that the goods bearing the marks
LAKME and MAC have been confiscated by the custom authorities. In
support of her contentions, she has handed over a copy of the order dated
29th October, 2014 passed by the Commissioner of Customs
(Preventive).
4. Learned counsel for defendant no.2 further states that defendant
no.2 is not interested in taking delivery of the LOTUS goods and has no
objection if the same are confiscated and/or destroyed by the custom
authorities in accordance with law.
5. She emphasis that defendant no.2 has not imported any goods
bearing the mark LOTUS and she undertakes that even in future no
goods bearing the said mark shall be imported without taking specific
permission/authorization of the plaintiff.
6. In view of the aforesaid statements/undertakings, learned counsel
for the plaintiff does not wish to press for any other relief qua defendant
no.2 from this Court.
7. The statements/undertakings given by learned counsel for the
defendant no.2 are accepted by this Court and the plaintiff and defendant
no.2 are held bound by the same.
8. Consequently, the suit is decreed qua defendant no.2 in
accordance with the aforesaid statements. Registry is directed to prepare
a decree sheet accordingly. Defendant no.1 is permitted to confiscate
and/or destroy the seized goods bearing the mark LOTUS.
9. A perusal of the file reveals that defendant no.3 has already been
proceeded ex parte vide order dated 17th August, 2015.
10. At this stage, learned counsel for the plaintiff states that he is
confining his relief to prayer 30(ii) and 30(iii) of the plaint against
defendant no.3.
11. A Coordinate Bench of this Court Satya Infrastructure Ltd. &
Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508,
has held as under:-
"4. The next question which arises is whether this Court
should consider the application for interim relief and direct
the plaintiffs to lead ex parte evidence. The counsel for the
plaintiffs states that the plaintiffs are willing to give up the
reliefs of delivery, of rendition of accounts and of recovery of
damages, if the suit for the relief of injunction alone were to
be heard today.
5. I am of the opinion that no purpose will be served in such
cases by directing the plaintiffs to lead ex parte evidence in
the form of affidavit by way of examination-in chief and which
invariably is a repetition of the contents of the plaint. The
plaint otherwise, as per the amended CPC, besides being
verified, is also supported by affidavits of the plaintiffs. I fail
to fathom any reason for according any additional sanctity to
the affidavit by way of examination-in-chief than to the
affidavit in support of the plaint or to any exhibit marks being
put on the documents which have been filed by the plaintiffs
and are already on record. I have therefore heard the counsel
for the plaintiffs on merits qua the relief of injunction."
12. Keeping in view the aforesaid mandate of law and the fact that the
defendant no. 3 has no real prospect of defending the claim as it has
neither entered appearance nor filed its written statement or denied the
documents of the plaintiff, this Court is of the view that there is no need
to relegate the plaintiff to lead ex parte evidence.
13. Accordingly, the present suit is decreed qua defendant no.3 in
accordance with prayer 30(ii) and 30(iii) of the plaint along with actual
costs. The costs shall amongst others include the lawyers' fees as well
as the amounts spent on purchasing the court fees. The plaintiff is given
liberty to file on record the exact cost incurred by it in adjudication of
the present suit, if not already filed. Registry is directed to prepare a
decree sheet accordingly.
14. Consequently, the present suit stands disposed of.
MANMOHAN, J
FEBRUARY 02, 2018
KA
