Sabyasachi Calcutta Llp vs Mr. Ankit Keyal Proprietor Asiana ...
2022 Latest Caselaw 1051 Del

                                                             Signature Not Verified
                                                             Digitally Signed
                                                             By:DEVANSHU JOSHI
                                                             Signing Date:19.04.2022
                                                             06:23:18

$~5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Decision: 13th April, 2022
+     CS(COMM) 533/2021 & I.A. 13942/2021, 13947/2021, 13948/2021
       SABYASACHI CALCUTTA LLP                            ..... Plaintiff
                    Through: Mr. Pravin Anand, Mr. Shrawan
                                Chopra, Mr. Vibhav Mithal & Mr.
                                Achyut      Tewari,         Advocates.
                                (M:8604633567)
                    versus
      MR. ANKIT KEYAL PROPRIETOR ASIANA COUTURE
      & ORS.                                      ..... Defendants
                    Through: Mr. Sumit Rajpoot & Mr. Samit
                                Khosla, Advocates. (M:9899030380)
      CORAM:
      JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J.(Oral)
1.

This hearing has been done through hybrid mode.

2. The present suit has been filed by the Plaintiff against the Defendants seeking permanent injunction restraining the Defendants' from indulging in piracy of designs, delivery up, damages, rendition of accounts, etc.

3. The Plaintiff - M/s Sabyasachi Calcutta LLP, is a firm primarily engaged in the business of designing, manufacturing, selling, and retaining designer garments, associated accessories and jewellery. The principal designer and partner, Mr. Sabyasachi Mukherjee has won various awards for his design and has exhibited his designs across the world. The designs concerned in the present matter are two designs:

(i) Design registration No. 85668, popularly known as 'Rusheeda Lehenga'; and

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.04.2022 06:23:18

(ii) Design registration No.83943, popularly known as 'New Botanical Lehenga I P.C. Lehenga'.

4. The case of the Plaintiff is that the Defendants are habitual infringers of various 'Lehenga' designs of the Plaintiff. Reliance is placed upon the order dated 2nd September, 2019 passed in two earlier suits CS(COMM)1363/2016 and CS(COMM)1364/2016 both titled Sabyasachi Couture v. Ramakant & Ors., wherein the Court had passed a decree against the Defendants and had also cautioned them, that if there are any future violations, exemplary damages and costs would be liable to be awarded. The relevant extract of the said order reads as under:

"10. Axiomatically, a decree is passed, in favour of the plaintiff and jointly and severally against the defendants in both the suits, of permanent injunction, in terms of prayer paragraph 34(a)&(b) in plaint dated 29th September, 2016 in CS(COMM) No.1363/2016 and in terms of prayer paragraph 33(a) of the plaint dated 29th September, 2016 in CS(COMM) No.1364/2016, leaving the parties to bear their own costs.

11. It is clarified that the injunctions are with respect to the works/designs subject matter of the plaint in the two suits.

12. The defendants are also cautioned, that for any future violation established, exemplary damages and costs will be awarded against the defendants."

5. It is noticed that, in the present suit, the infringing designs are two designs which have been extracted in order dated 27th October, 2021. An ad-interim injunction has been granted prima facie, on the findings that the designs are obvious imitations of the Plaintiff's designs. The relevant portion of the order dated 27th October, 2021, is extracted below for the

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.04.2022 06:23:18

sake of ready reference:

"5. Prima facie, on a plain viewing, the designs of the defendants appear to be an obvious imitation of the plaintiff's design and an attempt to link the products of the defendants with those of the plaintiff. These designs are also being marketed on the social media websites of the defendants, and material in that regard has been placed on record.

6. In these circumstances, the plaintiff has moved this Court for an order of injunction, restraining the defendants from infringing the aforesaid designs, which are marketed by the plaintiff under the names, "Rusheeda Lehenga" (Reg. No. 85668) and "New Botanical Lehenga/ P.O. Lehenga" (Reg. No. 83943). xxx

10. The defendants seek ad interim reliefs. The prayer clause in this application reads thus:

"25. It is, therefore, prayed that the following reliefs may be granted to the Plaintiff:

a) An order for ad interim temporary injunction restraining the Defendants, their principal officers, servants, agents, representatives, dealers and all others acting for and on their behalf, from manufacturing, applying/causing to be applied, selling, offering for sale, importing, advertising/publishing, directly or indirectly dealing in the impugned infringing garments 'Rusheeda Lehenga' and 'New Botanical Lehenga / P.C. Lehenga' or any other garments or similar article which is identical and/or obvious/fraudulent imitation of the Plaintif's registered designs Nos. 85668 and 83943 or any other registered design or doing any other act which amounts to infringement of the Plaintiffs registered

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.04.2022 06:23:18

design Nos. 85668 and 83943, including an order directing the Defendants to remove all the impugned infringing designs and garments from all online platforms including but not limited to Facebook, Instagram and other third party websites.

b) An order of ex parte ad interim temporary injunction in terms of prayer

(a) made above, during the pendency of the present application; and. Such other order as this Hon'ble Court may consider appropriate in the facts and circumstances of the present case."

11. In view of the aforesaid recital, a clear case for grant of ad interim relief exists. As such, till the next date of hearing, there shall be a restraint against the defendants in terms of prayer 'a' in this application as extracted hereinabove."

6. The Court has also perused the said designs. The Plaintiff's and Defendants' designs are as under:

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.04.2022 06:23:18

7. The said designs are, prima facie, identical. This Court finds that there is no reason for modifying the order dated 27th October, 2021. Accordingly, the interim order granted on 27th October, 2021, shall continue during the pendency of the present suit.

8. Accordingly, I.A. 13942/2021 is disposed of.

9. In so far as I.A. 13947/2021 and I.A.13948/2021 are concerned, these are applications filed by the Plaintiff seeking interim deposit and oral examination of Defendant No.1. Ld. Counsel for the Plaintiff submits that the Defendants have huge sales of more than 60 crores in the last four years and they are well established sellers of ladies 'Lehenga' and other bridal attire. Accordingly, the Plaintiff wishes to press for damages in this suit and these two applications are not pressed, at this stage, so that the Plaintiff can establish their case in the suit for award of damages.

10. However, as for I.A.13948/2021 seeking recording of the statement of

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.04.2022 06:23:18

Defendant No.1 under Order X Rule 2 CPC, it is made clear that the Plaintiff reserves its rights to summon Defendant No.1 during the suit. Accordingly, I.A. 13947/2021 and I.A.13948/2021 are disposed of. CS(COMM) 533/2021

11. Let the admission/denial be completed and the exhibits be marked before the Joint Registrar, on 27th May, 2022.

12. List before the Court on 8th August, 2022, for case management.

PRATHIBA M. SINGH JUDGE APRIL 13, 2022 dj/ms