Delhi High Court
M/S Okaya Power Ltd vs M/S Aqua Healer & Ors on 12 March, 2018
#1
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 448/2016 & I.A. 7093-7094/2013
M/S OKAYA POWER LTD ..... Plaintiff
Through Mr. Rakesh Mukhija with Mr. Rajiv
Singh Pilania, Advocates
versus
M/S AQUA HEALER & ORS ..... Defendants
Through Mr. Kamal Khurana, Advocate for
D-4 to 9.
% Date of Decision: 12th March, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A. 9791/2016
1. Present application has been filed on behalf of the plaintiff under
Order XIIIA of Commercial Courts, Common Division and Commercial
Appellate Division of High Courts Act, 2015 praying for a summary
judgment on the claim. The prayer clause in the present application is
reproduced hereinbelow:-
"i. Pass necessary orders and directions thereby issuing the
summons for judgment in the suit in terms of Order 13-A C.P.C.
ii. Pass judgment on the claim of the plaintiff / in favour of
the plaintiff and against the defendants thereby permanently
injuncting / restraining the defendants, its servants, retailers,
stockiest, distributors, representatives, assignees, centers and
agents, from using, copying, imitating the design and name i.e.
„MINJET‟ similar to the trade name of the training of the
plaintiff, directly or indirectly advertising the name similar,
copied, imitated, having same description, colour, style and
designs under no. 232257, similar to the trade name of the
plaintiff.
iii. Award the cost of the suit in favour of the plaintiff."
2. Learned counsel for the defendant nos. 4 to 9 states that the said
defendants have been unnecessarily impleaded in the present proceedings as
they have neither used the mark MINJET nor intended to use the same in
future. He further states that defendants nos. 4 to 9 have no objection if the
present suit is decreed in accordance with the prayer (ii) of the present
application and for prayer (i) of the plaint.
3. It is pertinent to mention that the present suit has been filed for
permanent and mandatory injunction, infringement of registered trademark,
passing off, unfair competition, design infringement, delivery up,
compensation of economic losses / damages and rendition of accounts.
4. The defendant no.1 despite service has not filed any written statement.
In fact, the right of the defendant no.1 to file a written statement was closed
on 14th December, 2015.
5. Learned counsel for the defendant no.3 had appeared last on 27 th
April, 2016. Thereafter none has appeared for defendant nos. 1, 2 and 3.
6. The defendant no.2 in response to the pleadings and claim of the
plaintiff in his Written Statement has stated / pleaded as under:-
"Para 8-12. It is further submitted that the defendant No. 2
never done any act against the law.
Para 20-28. It is submitted that when the defendant No. 2 has
no concern with the defendant No. 1 then there is no possibility
to use the brand-name of the plaintiff."
7. The defendant no. 3 in response to the pleadings and claim of the
plaintiff in his Written Statement has stated / pleaded as under:-
"Para 7. It is denied that the answering defendant is
manufacturing, distributing and selling the products of the
plaintiff. The answering defendant is not using any product
which is similar in any way to the products of the plaintiff. The
answering defendant has not infringed the plaintiff‟s copyright
in any manner whatsoever. However it is respectfully submitted
that the answering defendant has obtained a certificate from
Importer- Exporter code for manufacturing.
Para 13-14. However it is respectfully submitted that the
answering defendant have no relation with the name
"MINJET" hence no question of using the name "MINJET"
arose on the part of answering defendant as it is already
mentioned in Para No. 9 that there is no relation between M/S
AQUAHEALER RO WATER PURIFIER and trade mark
"MINJET".
Para 16. However it is respectively submitted that the products
of M/S AQUAHEALER RO WATER PURIFIER are absolutely
different from the products of trade mark "MINJET"
Para 26-27. the answering defendant has not copied or infringed the
design or trade name of the plaintiff in any manner as falsely alleged
by the plaintiff in the present proceedings. The answering defendant
has neither adopted any name deceptively similar to that of the
plaintiff nor misrepresents the same in any manner whatsoever. The
allegations are false, frivolous and manipulative.
8. From the aforesaid averments in the written statement it is apparent
that the case of the defendant nos.2 and 3 is that they are not infringing the
rights of the plaintiff and have no objection to the suit being decreed in
terms of the prayer in the present application.
9. In view of the pleadings on record, it is apparent that there are no
prospects of the defendants defending the claim of the plaintiff and it is a fit
case where this Court should pass a summary judgment.
10. Consequently, present application is allowed and the suit is decreed in
accordance with prayer (i) of the plaint. Registry is directed to prepare the
decree sheet accordingly. Parties to bear their own costs.
MANMOHAN, J
MARCH 12, 2018
rn
