Delhi High Court
Bata India Limited vs Subhash Kapoor & Ors on 5 October, 2018
$~OS-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05.10.2018
+ CS(COMM) 56/2017
BATA INDIA LIMITED ..... Plaintiff
Through Mr.Neeraj Grover, Mr.Abhishek and
Ms.Mehak Nakra, Advs.
Versus
SUBHASH KAPOOR & ORS ..... Defendants
Through Mr.Munish Mehra, Mr.Kunal Seth
and Ms.Tishya Pandey, Advs. for D-1
to 5 & 8.
Mr.Sahil Narang and Mr. Bharat
Gupta, Adv. for D-7.
Mr.Dhanesh Relan, Adv. for PVR
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA No.10852/2017 and 15042/2017
1. Both these application are filed by the plaintiff seeking amendment of
the plaint.
2. IA No. 10852/2017is filed seeking to add certain additional facts
which, it is stated, have arisen after filing of the suit. These facts relate to the
steps taken by defendants No. 2 and 3 to delete the word „Bata‟ from the
trailer/film.
3. As far as IA No.15042/2017 is concerned, by this application the
plaintiff seeks to add that defendant No.5 has applied for registration of the
CS(COMM) 56/2017 Page 1 of 4
trade mark „KHILADI‟ in Class 25 which relates to footwear. The
grievance of the plaintiff is that defendant No.5 is a Brand Ambassador for a
brand which is said to be a rival brand of the plaintiff. Hence, it is necessary
to place on record the fact that defendant No.5 is dealing in/proposing to
deal in footwear.
4. Learned counsel for defendants No. 1 to 5 and 8 has opposed the
present application. He has submitted that as far as the first application is
concerned, a plea has been taken that the trailer of the film in question is still
available on different links on YouTube. He submits that YouTube has been
deleted as a party. He further submits that applications are mala fide and
only to put obstacles in the adjudication of the application filed by defendant
No.5 under Order 1 Rule 10 CPC for his deletion from the array of parties. It
is pleaded that defendant No. 5 who is a known film star has been added as a
party only to gain publicity. The said defendant No. 5 has not uttered any
defamatory statement against the plaintiff and the amendments are only for
the purpose to continuing to drag him in the present frivolous litigation.
5. At this stage, it is not possible to go into the issue as to whether the
averments proposed to be added in the plaint are correct or not as has been
urged by the learned counsel for defendant Nos.1 and 2. These are issues
which have to be gone into at the time of adjudication of the suit. Reference
in this context may be had to the judgment of the Supreme Court in Raj
Kumar Bhatia v. Subhash Chander Bhatia, AIR 2018 SC 100.
6. Further, merely because the facts sought to be added will have a
bearing on the application filed by defendant No. 5 under Order 1 Rule 10
CPC would not be a ground to deny amendment. The proposed amendments
do not change the nature of the suit in any manner.
CS(COMM) 56/2017 Page 2 of 4
7. The principles of the amendment are quite well known. Reference
may be had to the judgment of the Supreme Court in the case of Revajeetu
Builders and Developers vs. Narayanaswamy and Sons & Ors, (2009) 10
SCC 84. The Supreme Court held as follows:-
"63. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(1) Whether the amendment sought is imperative for proper
and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or
mala fide?
(3) The amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms of
money;
(4) Refusing amendment would in fact lead to injustice or lead
to multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case?
and
(6) As a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation
on the date of application.
These are some of the important factors which may be
kept in mind while dealing with application filed under Order
VI Rule 17. These are only illustrative and not exhaustive."
8. The amendments sought are necessary for the purpose of determining
the real question of controversy between the parties. The proposed
amendments cannot be said to be malafide.
9. The application is allowed subject to payment of costs of Rs.20,000/-.
Amended plaint be filed within two weeks. Written statement to the
CS(COMM) 56/2017 Page 3 of 4
amended plaint be filed within four weeks thereafter.
10. The application stands disposed of.
IA No. 5045/2017 and 6540/2017
11. List before the Joint Registrar on 15.11.2018 for adjudication.
12. The Joint Registrar is requested to expeditiously dispose of these
applications.
JAYANT NATH, J.
OCTOBER 05, 2018
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