Delhi High Court
Voltas Ltd vs Vishal Dua & Anr on 27 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th November, 2018.
+ CS(COMM) 152/2016
VOLTAS LTD. ..... Plaintiff
Through: Ms. Asavari Jain, Ms. Geetanjali
Visvanathan and Mr. Nischal Anand,
Advs.
Versus
VISHAL DUA & ANR. ..... Defendants
Through: Mr. Umesh Mishra, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has sued the two defendants namely Vishal Dua and
Damini Enterprise, for permanent injunction restraining infringement of
trade mark 'VOLTAS' and passing off and for ancillary reliefs.
2. The suit came up first before this Court on 1st March, 2016 when,
while issuing summons/notice thereof, vide ex-parte ad-interim order, the
defendants restrained from using the mark 'VOLTAS' in any manner
whatsoever and commission issued to visit the premises of the defendants
and to make an inventory of the electric irons and/or other products bearing
the mark 'VOLTAS'.
3. The defendants appeared in response to the summons issued and filed
a written statement to which replication has been filed by the plaintiff.
4. Vide order dated 16th January, 2017, the following issues were framed
in the suit:
CS(COMM) 152/2016 Page 1 of 4
"(i) Whether the plaintiff is the registered proprietor of the
mark „VOLTAS‟ bearing registration number 315680? OPP
(ii) Whether the defendants are guilty of infringing the
registered trademark of VOLTAS by using the trademark
VOLTAS or any other deceptively similar trademark as to that
of the plaintiff? OPP
(iii) Whether the defendants are guilty of passing off by using
the trademark VOLTAS or any other deceptively similar
trademark as to that of the plaintiff? OPP
(iv) Whether the present suit is liable to be dismissed on the
ground of mis-joinder and non-joinder of parties? OPD
(v) Whether the plaintiff is entitled to rendition of accounts
and if so to what extent? OPP
(vi) Whether the plaintiff is entitled for damages and if so to
what extent? OPP
(viii) Relief."
and the parties relegated to evidence.
5. Vide order dated 5th January, 2018, the parties were referred to
Mediation Cell of this Court, which remained unsuccessful.
6. The interim order earlier granted continued and the defendants did not
press for hearing of the application. Recording of evidence has been
completed and the counsel for the plaintiff and the counsel for the defendants
have been heard.
7. The counsel for the defendants, at the outset only states that the
defendants have not opposed the grant of relief of permanent injunction as
sought by the plaintiff and have no objection to a decree as claimed, for
CS(COMM) 152/2016 Page 2 of 4
permanent injunction being granted. It is further stated that the defendants
have always been willing for the same and the main dispute between the
parties is of damages, claimed by the plaintiff and on which no settlement
could be arrived at in mediation.
8. The counsel for the plaintiff states that though the defendants denied
having ever used the mark of the plaintiff but the Commissioner appointed
by this Court executed the commission and has reported a large contingent of
goods bearing the mark of the plaintiff found at the premises of the
defendants. It is further stated that as per the manufacturing price and the
sale price of the said goods deposed by the witness of the defendants
themselves, according to the plaintiff, the plaintiff is entitled to damages in
the sum of Rs.5,38,680/- from the defendants.
9. The counsel for the defendants, on being asked as to what is the offer
of the defendants, states that the defendants offer Rs.1 lakh only by way of
damages. The counsel for the defendants however has fairly stated that the
defendants have not led any evidence explaining the presence of the goods
bearing the impugned mark found by the Commissioner.
10. In the circumstances aforesaid and keeping in mind that the damages
aforesaid are with respect to seized goods only and not with respect to
infringement and passing off committed by the defendants prior thereto, I see
no reason to deprive the plaintiff of damages as assessed on the basis of
evidence led.
11. A decree is accordingly passed in favour of the plaintiff and jointly
and severally against the defendants, (i) of permanent injunction in terms of
prayer paragraph 31(a), (b) & (c) of the plaint dated 24th February, 2016; (ii)
CS(COMM) 152/2016 Page 3 of 4
of delivery of all the infringing materials/goods seized by the Commissioner
and entrusted on superdari to the defendants, by directing that the
representative of the plaintiff visits the premises of the defendants within
fifteen days of today, when either the seized goods shall be destroyed or if
the impugned mark is capable of being obliterated/removed therefrom, shall
be removed/obliterated and the goods, without the impugned mark, remain
with the defendants; (iii) of recovery of Rs.5,38,680/-; and, (iv) of costs i.e.
court fees paid, fee paid to the Commissioner and professional fee assessed
at Rs.1,50,000/-.
12. The counsel for the defendants states that the decree for recovery may
be for lesser amount.
13. To obviate the plaintiff from filing execution, it is ordered that if the
defendants, on or before 26th December, 2018 pay a sum of Rs.6 lakhs to the
plaintiff, the decree for recovery of damages as well as costs, as aforesaid,
shall stand fully satisfied. If the amount is not so paid, the amount ordered
inclusive of costs shall also incur interest @ 12% per annum till realisation.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 27, 2018
'bs'
