M/S Mont Blanc Simplo Gmbh vs Gaurav Bhatia And Ors
2018 Latest Caselaw 565 Del

$~60
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CONT.CAS(C) 46/2018

      M/S MONT BLANC SIMPLO GMBH              ..... Petitioner
                   Through: Mr. Rajiv Nayar, Sr. Adv. with Mr.
                            V.P. Singh, Mr. Aditya Jalan, Mr.
                            Pradyumna Sharma and Mr. Saurabh
                            Seth, Advs.

                   versus

      GAURAV BHATIA AND ORS                              ..... Respondents
                  Through:

      CORAM:
      HON'BLE MR. JUSTICE V. KAMESWAR RAO
                   ORDER

% 23.01.2018

CM. No. 2848/2018 (for exemption) Exemption allowed subject to all just exceptions. Application stands disposed of.

CONT.CAS(C) 46/2018, CM Nos. 2845/2018 (for impleadment) & 2846/2018 (for stay)

1. Present petition has been filed by the petitioner under Section 11 and 12 of the Contempt of Courts Act, 1971 violating the judgment dated January 4, 2017 in Civil Suit being CS(OS) 2563/2013.

2. An issue has been raised by the Court on the maintainability of the Contempt petition in view of remedy of Execution available to the petitioner. Mr. Rajiv Nayar, learned Sr. Counsel appearing for the petitioner would state, the petitioner has also the remedy of Contempt available in view of the judgment of the Supreme Court in the case of Rama Narang v. Ramesh Narang and Anr. 2006 11 SCC 114, wherein the Supreme Court in Para 24 has held that merely because of an order or decree is executable, that would not take away the Court's jurisdiction to deal with the matter under the Act provided that the court satisfies that the violation of the order or decree is such that it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. Mr. Nayar would draw my attention to Page 208 of the paper book to contend that respondent no.1 was represented in CS (OS) 2563/2013 on May 27, 2015 when a submission was made that he would not infringe the trade mark / copyright of the petitioner / plaintiff. According to Mr. Nayar, respondent no.1 had also undertook not to do any such act in the present or in the future. According to Mr. Nayar, in fact, respondent no.1 had agreed to pay nominal damages quantified at Rs.5,00,000/-. Mr. Nayar conceding that the submission was not part of decree states, present petition would still be maintainable in view of the position of law in Rama Narang (supra). It is the case of the petitioner that vide order dated January 4, 2017, this Court had restrained respondent nos. 1 and 2 in the following manner:

"11. In view of the above discussion, the plaintiff is entitled to the relief claimed. Accordingly, by way of permanent injunction, the Defendants, their partners, if any, officers, servants, agents, distributors, stockists and representatives are restrained from manufacturing, selling and/or offering for sale, advertising, directly or indirectly dealing in writing instruments, wallets, watches, leather goods, jewellery or any other goods bearing the trademark MONTBLANC, MEISTERSTUCK, the Three Ring Device and/or the Star Device and are also restrained from passing off their counterfeit products as that of plaintiffs."

3. Mr. Nayar in support of his submission that contempt has been committed by resopndents 1 to 4, has drawn my attention to the averments made in paras 18 to 38 of the petition.

4. It is the submission of Mr. Nayar in view of the said paras that despite due service and notice of the Judgment (both actual and constructive), the Contemnors 1 to 4 appear to be deliberately continuing their infringing activities by way of their website at the domain name: www.montblancwriting.com. The said website displays and offers for sale the counterfeit products in gross violation and contempt of the judgment of this court. He states, the Contemnor No.1 was duly arrested by the Chandigarh Police on the basis of an FIR filed by one of the numerous consumes who were cheated by Contemnor No.1, before the Cyber Crime Cell of the Chandigarh Police vide FIR No. 395 dated September 24, 2014 under Section 406, 420 IPC and 66 AIT Act of PS-39, Chandigarh. The Police had also seized a number of counterfeit products from the possession of the Contemnor No.1.

5. It is also his submission, in view of the averments in the said paras, the respondents 3 and 4 are also necessary parties in the Contempt Petition. In this regard, he would rely upon a judgment of this Court in the case of McDonald's India Private Limited v. Union of India and Ors W.P.(C) No. 9036/2017 decided on January 09, 2018, wherein in para 43, the Coordinate Bench of this Court has held as under:-

"43. There is no merit in the argument that an action for contempt cannot be initiated or taken against a party who was not already a party to the lis or, that in contempt proceedings there cannot be a charge of "collusion" or, of the parties having acted "in concert". It is not difficult to conceive of cases where a party to the litigation, with aid, assistance or abetment of a stranger to the proceedings, may indulge in acts of commission or omission so as to overreach the judicial orders passed in such proceedings and to defeat or obstruct the administration of justice. The parties which are strangers to the judicial proceedings can be proceeded against if there is material to support the allegation that they had knowledge of the lis and the orders passed therein and that they shared the guilty intent. In this view, this court rejects the argument that a party who was not a party to the company petition cannot at all be proceeded against in the contempt proceedings."

6. In view of the submissions made by Mr. Nayar, issue notice to respondent nos. 1 and 5 returnable on April 25, 2018. CM. NO. 2847/2018 (for directions)

7. This is an application filed by the petitioner under Order XXVI Rule 9 CPC read with Order XXXIX Rule 7 CPC read with Section 151 CPC for appointment of Local Commissioners.

8. Having heard Mr. Rajiv Nayar, learned Sr. Counsel for the petitioner, I appoint the following Advocates as Local Commissioners, who shall visit the premises shown against their names.

1. Ms. Jyoti Taneja, Adv. M/s. Richmond Group (owned by (Mobile No. 9999500069) Respondent No. 3) at House No. 452, A-4 VIP Road, Palm Court Apartment, Zirakpur, TEH Derabassi, District SAS Nagar, Punjab-140603

2. Ms. Vasundhara Nayyar, Adv. Contemnor No.1's Business Premises at (Mobile No. 9971223453) WZ-53, Jawala Heri Market, Paschim Vihar, New Delhi, Delhi-110063

3. Ms. Deboshree Mukherjee, Contemnor No.1's Office Premises at Plot Adv. (Mobile No. 9971635549) 421, Second Floor, Bulk Material Market, Sec-65, Near Phase 11, Mohali

4. Mr.Karan Kakkar, Adv. M/s. Beats Infotech / M/s. Bhatia (Mobile No. 9910707373) International (Owned by Contemnor No.

1) at Plot No. 470, Industrial Area Phase 9, Mohali

5. Mr. Amit Kumar Yadav, Adv. Registered Office of Contemnor No. 2 at SCO-391, 1st Floor, Sector 37-D, (Mobile No. 7011940477) Chandigarh, 160036

9. The Local Commissioners shall carry out the commission for the following purpose:-

(i) Visit and enter the premises, where the Contemnor(s) is/are storing, stocking, manufacturing and / or selling the Impugned Products or any other premises, if required, which are ascertained to be associated with the Contemnor(s), or those premises where the Commissioner has an apprehension that Impugned Products have been stocked, stored, manufactured or made available or those premises where the Contemnor(s) is/are indulging in the illegal acts amounting to passing off, unfair competition and dilution of Petitioner's rights;

(ii) Make an inventory of all the Impugned Products found to be stocked, stored, manufactured and made available, including packaging, labels, stationary, hoardings and any other materials in relation to the Impugned Products at the premises visited by the Local Commissioners;

(iii) Take into custody, seize and seal such Impugned Products which are found during inspection and to hand over such Impugned Products to the Contemnor(s) with an undertaking by the Contemnor(s) that they will produce the same as and when directed by this Court;

(iv) Inspect and record details of the business activities of the Contemnor(s), records of the Contemnor(s), inventory of sold and unsold stock of the Impugned Products, books of accounts, ledgers, cash books, purchase, sale records of the Impugned Products maintained by the respective contemnor(s) and sign the same;

(v) Take samples of the Impugned Products in terms mentioned above and also to take photographs of the said Impugned Products and the Contemnors' other premises visited during the execution of the commission;

10. The Commissioners shall be at liberty to take assistance of local police if deem necessary to implement this order of the Court and the local police shall give such assistance. If in the eventuality, they have to break open the locks they can do so. Local Commissioner at Sl. Nos. 1 and 3 to 5 shall be paid an amount of Rs.75,000/- each and Local Commissioner at Sl. No. 2 shall be paid an amount of Rs.50,000/- for carrying out the commission. The travelling and out of pocket expenses, if any incurred shall be as per actuals, to be borne by the petitioner herein. The Commissioners shall also take photographs / video-graph (if required) during the commission and shall file a report in this Court within three weeks of undertaking the commission. The representatives of the petitioner shall accompany the Local Commissioner for identifying the offending/impugned products.

11. Application stands disposed of.

V. KAMESWAR RAO, J JANUARY 23, 2018/jg