Delhi High Court
Fdc Limited vs Fdc India Franchise Development ... on 24 March, 2021
$~OS-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24.03.2021
+ CS(COMM) 300/2020
FDC LIMITED ... Plaintiff
Through Ms.Shwetasree Majumder, Advs.
versus
FDC INDIA FRANCHISE DEVELOPMENT CONSULTING INDIA
& ANR. ... Defendants
Through Mr.Amit Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA No. 543/2021
This is an application filed by the defendants seeking condonation of
delay of 89 days in filing the written statement and affidavit of
admission/denial of documents on behalf of the defendants.
This application is strongly opposed by the learned counsel for the
plaintiff.
Keeping in view the judgment of the judgment of the Supreme Court
in the case of Suo Moto Writ (Civil) 3/2020, dated 06.05.2020, the present
application is allowed.
Written statement is taken on record.
CS(COMM) 300/2020
IA No. 6945/2020
1. This application is filed under Order 6 Rule 17 CPC seeking
amendment of the plaint.
2. The plaintiff has filed the accompanying suit for permanent injunction
restraining infringement of the trade mark, passing off, delivery up,
rendition of accounts and damages. It is stated that the suit was listed on
05.08.2020 on which date an interim injunction was granted in favour of the
plaintiff. It is stated that during the above-mentioned hearing, the plaintiff
became aware about an inadvertent error in the paint regarding the status of
the plaintiff's trade mark applications bearing Nos. 1200579 and 1200578.
The plaintiff had inadvertently pleaded in the plaint that the said marks are
registered whereas the applications for registration were pending. In the light
of the same, the plaintiff seeks leave of this court to amend para 19 of the
plaint to reflect the factually correct status of the trademarks which are
registered and which are pending registration.
3. Learned counsel for the defendants has strongly opposed the present
application stating that it changes the nature of the case. It is stated that the
plaintiff had wrongly misled the court to pass an interim order mentioning
wrong facts in the plaint. He also states that proceedings under Section 340
Cr.P.C. have been initiated being Crl.M.A. No. 12062/2020 in which, notice
was issued to the plaintiff.
4. What the plaintiff seeks to do is to correct the factual mistakes in the
plaint. I do not see how correction of factual mistakes will in any manner
change the nature of the suit. The suit will remain a suit seeking injunction
of the trade mark of the plaintiff and passing off. Needless to add, the
amendment will not in any manner affect the merits, or otherwise, of
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Crl.M.A.No. 12062/2020 of which notice was issued by this court on
02.09.2020.
5. Reference may be had to the judgment of the Supreme Court in the
case of 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."
6. Reference may also be had to the judgment of the Supreme Court in
the case of Revajeetu Builders and Developers vs. Narayanswamy and
Sons and Ors., MANU/SC/1724/2009, where 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
CS(COMM) 300/2020
fresh suit on the amended claims would be barred by limitation
on the date of application."
7. Clearly the proposed amendment does not fundamentally change the
nature of the case or character of the case. The suit remains a suit for
permanent injunction restraining infringement of trademark, passing off,
delivery, rendition of accounts and damages.
8. The application is accordingly allowed subject to cost of Rs. 15,000/-
to be deposited with the Delhi High Court Advocates' Welfare Fund.
9. The amended plaint is taken on record. The application stands
disposed of.
CS(COMM) 300/2020
Written statement to the amended plaint be filed within 30 days.
Replication be filed within 30 days thereafter.
List on 28.07.2021.
JAYANT NATH, J
MARCH 24, 2021
rb
CS(COMM) 300/2020
