Delhi High Court
Superon Schweisstechnik India ... vs D & H India Limited on 3 July, 2019
$~OS-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.07.2019
+ CS(COMM) 665/2017
SUPERON SCHWEISSTECHNIK INDIA LIMITED ..... Plaintiff
Through Mr.Sanjeev Singh and
Mr.D.K.Yadav, Advs.
versus
D & H INDIA LIMITED ..... Defendant
Through Ms.Girija Krishan Varma, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
OA No.58/2019
1. By this appeal the appellant/defendant seeks to impugn the order
dated 25.4.2019 passed by the learned Joint Registrar allowing the IA
No.10990/2018. The accompanying suit is filed by the plaintiff seeking a
decree of permanent injunction to restrain the defendants from selling
offering for sale, advertising or displaying directly or indirectly in any other
manner or mode welding electrodes and all allied and cognate
goods/products under the trademark/label SUPERCROME or any other
trademark/label dress identical with or deceptively similar to the plaintiff's
trademark SUPERON.
2. The plaintiff filed the said application under Order 6 Rule 17 CPC
seeking amendment of the plaint. By this application the plaintiff seeks to
add in the plaint that the trademark SUPERON has been used in the course
CS (COMM.) 665/2017 Page 1
of trade and business since 1994 by the parent group of the plaintiff
company namely Stanvac Chemicals India Limited. The plaintiff company
was incorporated in 2004 and since then the plaintiff continued to use the
said trademark in relation to the said goods in the course of trade and
business. In the original plaint it has been pleaded that the user of the
trademark SUPERON commenced in 2004.
3. By the impugned order the learned Joint Registrar noted that issues
have not been framed in the present matter and that by amendment the
plaintiff seeks to bring on record facts regarding use of the trademark
SUPERON. It notes that it could not cause any prejudice to the defendant as
the defendant would have an opportunity to rebut the fact and the
amendment application was allowed.
4. Learned counsel for the appellant/defendant vehemently argued that
the proposed amendment causes grave prejudice to the appellant/defendant
inasmuch as the date of user of the trademark SUPERON by the plaintiff is
sought to be changed by the proposed amendment. In the original plaint the
user of the trademark is said to be since 2004 whereas the proposed
amendment now seeks to argue that the user is from 1994. She further states
that the plaintiffs have failed to show as to whether they have any authority
from Stanvac Chemicals India Limited to make the present application and
to claim that the said Stanvac Chemicals India Limited is a parent group of
the plaintiff company and that the user by the Stanvac Chemicals India
Limited of the trademark SUPERON can also be claimed as a user by the
plaintiff. She also states that there is no legal or financial relationship
between the plaintiff and Stanvac Chemicals India Limited. She also states
that the defendant/parent company has been using the trademark
CS (COMM.) 665/2017 Page 2
SUPERCROME and its variants since 1985. She also states that invoices
since 1992 have been placed on record. She also states that the plaintiff has
initiated other legal proceedings also against the defendant subsequent to the
present suit where again there is no reference to the user of the trademark
SUPERON by Stanvac Chemicals India Limited.
5. In my view there is no error or infirmity in the impugned order. The
suit is at the initial stage. Appellant/defendant merely seeks to place on
record the fact that a company by the name of Stanvac Chemicals India
Limited which is said to be the parent company has been using the
trademark SUPERCROME since 1994 prior to the incorporation of the
appellant/respondent company. As to whether this alleged user by a
company Stanvac Chemicals India Limited would in any manner enhance
the merits of the case of the plaintiff are issues which will be gone into at the
time of adjudication of the case. At this stage, while considering application
for amendment the merits of the averments which are sought to be
incorporated have not to be gone into by the court. Reference in this context
may be had to the judgment of the Supreme Court in Rajesh Kumar
Aggarwal and Others vs. K.K.Modi and Others, (2006) 4 SCC 385 where
the Supreme Court held as follows:-
"19. While considering whether an application for amendment
should or should not be allowed, the Court should not go into
the correctness or falsity of the case in the amendment.
Likewise, it should not record a finding on the merits of the
amendment and the merits of the amendment sought to be
incorporated by way of amendment are not to be adjudged at the
stage of allowing the prayer for amendment. This cardinal
principle has not been followed by the High Court in the instant
case."
CS (COMM.) 665/2017 Page 3
Similarly, in Lakha Ram Sharma vs. Balar Marketing Private
Limited, (2008) 17 SCC 671 the Supreme Court held as follows:-
"4.It is settled law that while considering whether the
amendment is to be granted or not, the court does not go into
the merits of the matter an decide whether or not the claim
made therein is bona fide or not. That is a question which can
only be decided at the trial of the suit...."
6. Clearly, the defence sought to be raised by the appellant cannot be
adjudicated upon at this stage as it deals with the merits of the proposed
amendment.
7. In my opinion, further the amendment sought cannot said to be
malafide. Reference may be had to Revajeetu Builders and Developers vs.
Narayanswamy and Sons and Ors., MANU/SC/1724/2009 the Supreme
Court held as follows:-
"67. 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."
CS (COMM.) 665/2017 Page 4
8. There is accordingly no merit in the appeal. Same is dismissed.
JAYANT NATH, J.
JULY 03, 2019/n
CS (COMM.) 665/2017 Page 5
