Delhi High Court
Aura Synergy India Ltd & Anr vs M/S New Age False Ceiling Co Pvt Ltd ... on 17 July, 2018
3
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 799/2017
AURA SYNERGY INDIA LTD & ANR ..... Plaintiffs
Through: Mr. Harsh Kaushik, Advocate with
Mr. Abhay Chattopadhyay and
Mr. Gaurav Sharma, Advocates.
versus
M/S NEW AGE FALSE CEILING
CO PVT LTD & ANR ..... Defendants
Through: Mr. Manish Biala, Advocate.
% Date of Decision: 17th July, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A. 2894/2017 in CS(COMM) 799/2017
1. Present application has been filed under Order 6 Rule 17 CPC
seeking leave of this Court to amend the plaint.
2. It is pertinent to mention that the present suit has been filed for
permanent and mandatory injunction restraining passing off of trade
mark along with damages. Along with the suit, an injunction
application was also filed.
3. Initially, the learned Predecessor of this Court passed an ex
parte ad interim injunction order dated 02nd November, 2015.
4. However, the said injunction order was vacated on 10 th
February, 2016 on the ground that plaintiffs had indulged in gross
suppression and mis-statements in the suit.
5. Upon the matter being carried forward in appeal, the Division
Bench agreed with the conclusion of the learned Single Judge and held
that as the plaintiffs were guilty of suppression and/or concealment of
facts, they were not entitled to any ad interim injunction.
6. In the present amendment application that has been filed, the
plaintiffs amongst other amendments seek to now overcome the case
of suppression by disclosing the business relationship between the
plaintiffs and the defendants. No reason has been given in the
amendment application as to why the said relationship had not been
disclosed in the first instance i.e. when the suit had been filed.
7. It is settled law that by way of an amendment, the plaintiffs
cannot „rob the defendant‟ of a defence that had already accrued in its
favour, namely, the defence of suppression. It is pertinent to mention
that both the learned Single Judge as also the Division Bench have
already reached a prima facie conclusion that the plaintiffs have
indulged in suppression. Consequently, this Court is of the view that
if the present application is allowed, it would amount to
„whitewashing‟ the allegation of suppression.
8. In M/s. Kelwyn Door Cares (India) & Anr. Vs. M/s. Janson
Enterprises & Anr., 2017 SCC OnLine Del 9998; Ramjas
Foundation and another Vs. Union of India and others, Civil
Appeal No. 6662 of 2004, decided on November 9, 2010 at paras 14
and 15; G. Narayanaswamy Reddy (Dead) by LRs. and Another Vs.
Government of Karnataka & Another, (1991) 3 SCC 261 at para 2;
K.D. Sharma Vs. Steel Authorities of India Limited and Others,
(2008) 12 SCC 481; and S.P. Chengalvarya Naidu (Dead) by LRs Vs.
Jagannath (Dead) by LRs. and Others, (1994) 1 SCC 1, at para 5
etc., it has been recognised that a party which fails to approach the
Court with clean hands by suppressing and/or fabricating material
facts ought to be disentitled from any relief in limine.
9. A Coordinate Bench of this Court in Huntsman International
(India) Private Limited Vs. Abiss Textile Solutions Private Limited &
Ors. 2018 SCC OnLine Del 7545 has even held that, "The plaintiff
when caught on the wrong foot, if permitted to change its stand, the
same would amount to giving premium on dishonesty and will send a
message that the Court can be approached and the defendant
harassed, by misrepresenting facts and the stand can be changed if
caught and would sound the death knell of litigation."
10. Accordingly, present application is dismissed with costs of
Rs.25,000/-.
I.A. 24550/2015 in CS(COMM) 799/2017
11. Learned counsel for defendants-applicants wishes to withdraw
the present application.
12. Consequently, the same is dismissed as withdrawn.
CS(COMM) 799/2017
13. Parties are given liberty to file additional documents, if they so
desire, within a period of four weeks.
14. List the matter before the Joint Registrar for admission/denial of
documents on 26th September, 2018.
MANMOHAN, J
JULY 17, 2018
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