Delhi High Court
Kent Ro Systems Ltd & Anr vs Naveen Mahajan & Anr on 20 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th February, 2019.
+ CS(COMM) 899/2016
KENT RO SYSTEMS LTD & ANR ..... Plaintiffs
Through: Ms. Rajeshwari H. with Mr. Kumar
Chitranshu, Advs.
Versus
NAVEEN MAHAJAN & ANR ..... Defendants
Through: Mr. Abhai Pandey with Mr. Varun Sharma
& Mr. Gautam Kumar, Advs.
AND
+ CS(COMM) 900/2016
KENT RO SYSTEMS LTD & ANR ..... Plaintiffs
Through: Ms. Rajeshwari H. with Mr. Kumar
Chitranshu, Advs.
Versus
NAVEEN MAHAJAN & ANR ..... Defendants
Through: Mr. Abhai Pandey with Mr. Varun Sharma
& Mr. Gautam Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiffs instituted these two suits, against the same defendants,
for permanent injunction restraining the defendants from infringing
registered designs no.219309, 224813, 252225, 230893 & 262661 of the
CS(COMM) Nos.899/2016 & 900/2016 Page 1 of 5
plaintiff and from passing off their goods as those of the plaintiffs and for
ancillary reliefs.
2. The suits were entertained and summons thereof and notices of the
applications for interim injunction issued and vide ex parte order dated 22nd
July, 2016 in CS(COMM) 900/2016, the defendants restrained from
infringing the aforesaid designs of the plaintiffs.
3. The defendants, though filed written statements in both suits, but on
20th March, 2017 stated that they had no objection to the suits, insofar as the
relief of permanent injunction, being allowed. On the said statement of the
counsel for the defendants, a decree of permanent injunction was passed, in
favour of the plaintiffs and against the defendants, in terms of prayer
paragraph 48 (a) and (b) of plaint dated 19.07.2016 in CS(COMM) 899/2016
and in terms of prayer paragraph 44 (a) of plaint dated 16.07.2016 in
CS(COMM) 900/2016.
4. The suits, thereafter continued only qua the claim of the plaintiffs for
ancillary reliefs of rendition of accounts and recovery of damages.
5. Vide subsequent order dated 4th July, 2017, the following common
issues were framed in two suits and the parties relegated to evidence:
"1. Whether the plaintiff is entitled to a decree for rendition
of account of profits earned by the defendants on account
of sale of the infringing products? .......OPP
2. Whether the plaintiff is entitled to a decree for delivery
by the defendants of the alleged counterfeit materials?
........OPP
3. Whether the plaintiff is entitled to a decree of damages, if
so of what amount? ........OPP
CS(COMM) Nos.899/2016 & 900/2016 Page 2 of 5
4. Whether the defendants have continued to pass off the
goods of the defendants as goods of the plaintiff even
after the order dated 22.07.2016, if so, its effect? .....OPP
5. Relief."
6. The plaintiffs have examined one witness; the defendants also have
examined one witness, and closed their evidence. The suit is ripe for final
hearing and the counsels have been heard.
7. The plaintiffs, in the affidavit by way of examination-in-chief of their
sole witness, have proved nothing except repeating the contents of the plaint.
8. Though the counsel for the plaintiffs has drawn attention to paras 9 &
10 of the affidavit by way of examination-in-chief of the said witness but the
deposition therein is with respect to the defendants, in spite of the decree for
injunction, having continued to infringe the subject designs of the plaintiffs
and having continued to pass off their goods as those of the plaintiffs and
which could not have been the subject matter of the suit, after the decree for
injunction had been passed. The violation, if any by the defendants of the
decree for permanent injunction, could only have been the subject matter of
execution of the said decree. The counsel for plaintiffs, on enquiry states
that there was no application under Order XXXIX Rule 2A of the CPC also.
The evidence with respect to violation by the defendants of the decree for
permanent injunction, claimed to have been led by the plaintiffs, is beyond
pleadings. The plaintiffs, on the issues framed, were required to lead
evidence of infringement by the defendants, of prior to the institution of suit
and till the time of order/decree of interim/permanent injunction.
CS(COMM) Nos.899/2016 & 900/2016 Page 3 of 5
9. The plaintiffs have utterly failed to lead any such evidence and have
not even examined any technical witness and the sole witness examined is
the legal head of the plaintiffs and bare perusal of his cross-examination
shows that he had no personal knowledge about the case.
10. Without the plaintiffs having proved violation of the registered designs
of the plaintiffs and/or having proved that the designs of the product of the
defendants were in infringement thereof, the question of the plaintiffs being
entitled to the reliefs of rendition of accounts and/or recovery of damages
and/or of delivery of infringing goods does not arise.
11. The plaintiffs, though sought trial on the said aspects, but have utterly
failed to lead the evidence so much so that the sole witness has deposed of
the infringement by the defendants on the basis of "advice received by him".
It is not even deposed as to who rendered such advice and why the witness
accepted the advice.
12. The suit for the ancillary reliefs, on which alone the parties were
relegated to evidence, thus has to fail due to the failure of the plaintiffs
themselves and need to refer to the evidence of the defendants is not felt.
13. The counsel for the plaintiffs, at this stage, states that IA
No.13373/2016 under Order XXXIX Rule 2A CPC was filed in CS(COMM)
900/2016 but herself states that same was disposed of on 17 th February,
2017. A perusal of the order dated 17th February, 2017 in IA No.13373/2016
shows that the Court was satisfied that the defendants had not violated the
interim order. The plaintiffs thereafter did not agitate the issue further.
14. Suffice it is to state that defendant No.1, being the Director of
defendant No.2, examined as the sole witness of the defendants, has denied
CS(COMM) Nos.899/2016 & 900/2016 Page 4 of 5
any infringement or passing off and the suit, insofar as for the ancillary
relief, fails.
15. The counsel for the plaintiffs has pressed for costs.
16. The plaintiffs having not proved infringement/passing off and the
defendants having at the outset only, without trial, consented to a decree for
permanent injunction, the plaintiffs are not found entitled to any costs.
17. Counsel for the defendants presses for costs.
18. The plaintiffs having compelled the defendants to be relegated to
evidence in spite of defendants having consented to a decree for permanent
injunction, are liable for costs of the defendants and also for wasting the time
of this Court for the last over one and a half years, when no technical witness
of the plaintiffs to prove infringement of design, even was to be examined
and only the legal head was to depose on the basis of advice received by
him.
19. However, taking lenient view of the matter and cautioning the
plaintiffs, I am this time refraining from burdening the plaintiffs with costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 20, 2019
ak
