Delhi High Court
Principal Commissioner Of Customs ... vs Loreal Sa on 15 May, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: May 15, 2025
+ CM(M)-IPD 17/2025, CM APPL. 26692/2025, CM APPL.
26693/2025
PRINCIPAL COMMISSIONER OF CUSTOMS JAWAHARLAL
NEHRU CUSTOMS HOUSE AND ANR .....Petitioners
Through: Mr. Aditya Singla, SSC, CBIC with
Ms. Shreya Lamba, Mr. Rihitik Saha
and Mr. Umang Mishra, Advs.
versus
LOREAL SA .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SAURABH BANERJEE
J U D G MENT (oral)
1. The present petition under Article 227 of the Constitution of India
was filed seeking the following reliefs:
"a. Quash and set aside the impugned orders dated 05.09.2024,
20.09.2024, 27.09.2024, 19.10.2024 in CS(COMM)130/2023 and orders
dated 24.10.2024, 11.11.2024 AND 17.01.2025 in MISC DJ/3620/2024
passed by the Ld. District Judge (Commercial Court)-02, Patiala House
Courts, New Delhi;
b. pass any such and further orders as this Hon'ble Court may deem
fit and proper in the facts and circumstances of the present case;"
2. On 02.05.2025, when the present matter was received on transfer
before this Court, Mr. Aditya Singla, learned counsel for the petitioners
sought liberty to confine his arguments and reliefs only qua the challenge to
the order dated 17.01.2025 passed by the learned District Judge
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 1 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
(Commercial Court)-02, Patiala House Courts, New Delhi1 in MISC
DJ/3620/2024 whereby, the learned Revenue Secretary, Ministry of Finance,
Government of India was called upon to file an Action Taken Report2 within
a period of six weeks (paragraph nos.34 and 35). Furthermore, Mr. Aditya
Singla also sought to refrain from making any arguments qua challenge to
the orders dated 05.09.2024, 20.09.2024, 27.09.2024, 19.10.2024 passed by
the learned Trial Court in CS (COMM) 130/2023 [OLD No.-TM
NO.58/2018]3 and orders dated 24.10.2024 and 11.11.2024 also passed by
the same learned Trial Court in MISC DJ/3620/2024 and sought liberty to
challenge the same by way of appropriate proceedings before another forum
in accordance with law.
3. Thereafter, on 13.05.2025, Mr. Aditya Singla sought some time for
addressing arguments on the issue of maintainability and the matter was
adjourned for today i.e. 15.05.2025.
4. The issue in the present petition under Article 227 of the Constitution
of India has arisen out of MISC DJ/3620/2024, which was separately opened
subsequent to passing of the judgment and decree dated 19.10.2024 in CS
(COMM) 130/2023 filed by the respondent/ plaintiff M/s. Loreal SA
against the defendant no.1 therein M/s Reliable Enterprises & Ors., the
petitioner no.1/ defendant no.2 Office of the Principal Commissioner of
Customs and the petitioner no.2/ defendant no.3 Commissioner of Customs
(RI&I), seeking the following reliefs:
"a) For a decree of permanent injunction restraining the defendant no.
1 by itself/ themselves as also through individual proprietors/partners,
1
hereinafter referred to as "learned Trial Court"
2
hereinafter referred to as "ATR"
3
hereinafter referred to as "CS(COMM) 130/2023"
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 2 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
his/ their other agents, representatives, distributors, assigns, heirs,
successors, stockists and all others acting for and on its behalf from using,
selling, soliciting, importing (in any manner or from any other port),
exporting, displaying, advertising or by any other mode or in any manner
using the Plaintiff's said trademarks L'OREAL (with or without PARIS)
and trademarks/ labels/ packaging and/or any word/mark/ label/
packaging which may be identical with and/or deceptively similar to the
plaintiff's said trademark/label L'OREAL (with or without PARIS) in
trading of cosmetics and toiletries, hair care products and beauty
products including make-up preparations and accessories used therefore
and other allied/ related products and from doing any other acts or deeds
amounting to or likely to:-
i. Infringement of plaintiff's registered trademarks/labels as
mentioned above.
ii. Passing off and violation of the plaintiff's rights in the plaintiff's
said trademark L'OREAL (with or without PARIS).
iii. Violation of plaintiff's trade name.
iv. Infringing the Copyright in the artwork of the plaintiff's
trademarks/ labels/ packaging viz. L'OREAL (with or without
PARIS).
b) Restraining and direct the defendant no. 2 & 3 from releasing and
Defendant No.1 from obtaining release of impugned goods under
trademark/label L'OREAL (with or without PARIS) and
trademarks/labels/packaging and/or any other
word/mark/label/packaging which may be identical with and/or
deceptively similar to the plaintiff's said trademark/label L'OREAL (with
or without PARIS) presently lying in the custody of Defendant No. 2 & 3
being consignment under Bill of Entry No. 4605743 dated 29/12/2017.
c) For a direction to Defendant No. 2 & 3 to absolute confiscate the
impugned counterfeit goods bearing the Plaintiff's trademark/label under
consignment under Bill of Entry No. 4605743 dated 29/12/2017 and
liberty to the Plaintiff to destroy the said impugned goods in accordance
with law.
d) For an order for rendition of accounts of profits earned by the
defendant no. 1 by its impugned illegal trade activities and a decree for
the amount so found in favour of the plaintiff on such rendition of
accounts.
e) To direct the defendant no. 1 to disclose details of the exporter/supplier
from where such impugned goods have been supplied including the
complete name, address, email id, contact number, bank details and other
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 3 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
details relevant to the supplier of the impugned goods.
f) To direct the Defendant No.1 to disclose the details of all the entities
involved in the infringement chain of the impugned goods including the
details of shipping line, clearing agent, freight forwarder, mode of
payment, bank transactions PAN details etc. and any other agency
involved.
g) Restraining the defendant No.1 from disposing of or dealing with his
assets in a manner which may adversely affect plaintiff's ability to recover
damages, costs or other pecuniary remedies which may be finally
awarded to the plaintiff.
h) To direct the Defendant No. 2 to expedite the adjudication &
destruction proceedings.
i) For an order for cost of proceedings and
j) For such other and further order as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present case. ..."
5. In the wake of the above, Mr. Aditya Singla submits that the sole
relief sought before the learned Trial Court, qua the petitioners herein, was
confiscation and non-release of the impugned counterfeit goods bearing the
respondent's/ plaintiff's trademark/ label under consignment, i.e. bill of
entry number 4605743 dated 29.12.2017.
6. During the course of hearing, Mr. Aditya Singla has handed over a
copy of CS(COMM) 130/2023 as also the judgment and decree dated
19.10.2024 passed by the learned Trial Court, since the same have
inadvertently not been filed as a part of the record before this Court.
Considering the nature of the issue raised by the petitioners, as also since no
relief has been claimed against the respondent herein, the said documents
are taken on record.
7. As per Mr. Aditya Singla, despite passing of the judgment and decree
dated 19.10.2024, the same learned Trial Court by virtue of a separate order
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 4 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
of even date has duly acknowledged that "Vide separate detailed judgment
of even date, announced in open court, the suit is decreed in favour of
plaintiff and against the defendants with cost of the suit. Decree sheet be
drawn up." and proceeded with initiation of MISC DJ/3620/2024, wherein
the impugned order dated 17.01.2025 has been passed.
8. Of the many grounds taken, Mr. Aditya Singla has confined his
arguments qua maintainability of the petition in the present form by
submitting that it is a settled position of law that neither consent nor waiver
nor acquiescence can confer jurisdiction upon a Court, otherwise
incompetent to try the suit.
9. Mr. Aditya Singla submits that since the judgment and decree dated
19.10.2024 had been passed by the learned Trial Court, the proceedings
pending before the said Court became final and the learned Trial Court
became functus officio and could not have exercised jurisdiction of issuing
show cause notices and calling for Action Taken Reports especially, since
no execution was filed/ is pending against the said judgment and decree
dated 19.10.2024 and no fresh proceedings by way of MISC DJ/3620/2024
could have been initiated by the learned Trial Court. In order to substantiate
his aforesaid submissions, he relies upon the pronouncements by the
Hon'ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal
Ltd.4 as also Dr. Jagmittar Sain Bhagat v. Director, Health Services5.
10. This Court has heard the submissions of the learned counsel for the
petitioners and perused the documents on record as also the judgments cited
at Bar.
4
(2005) 7 SCC 791
5
(2013) 10 SCC 136
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 5 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
11. The aforesaid reveals that, admittedly, the sole relief sought by the
respondent before the learned Trial Court against the petitioners herein was
only qua confiscation and non-release of the impugned counterfeit goods
bearing the respondent's trademark/ label under consignment, i.e. bill of
entry number 4605743 dated 29.12.2017. Also, admittedly, the learned Trial
Court decreed CS(COMM) 130/2023 vide its judgment and decree dated
19.10.2024 in favour of the respondent. At the same time, vide a separate
order passed by the same learned Trial Court on 19.10.2024, proceeded to
pass the following directions:-
"... ... ... ...Record further shows that Reply-cum-Affidavit dated 19-9-
2024 under the signature of concerned Deputy Commissioner of
Customs, IPR Cell, Special Investigation and Intelligence Branch
(Import) was filed before this Court on 20-9-2024. Thereafter, Status
Report in the form of affidavit dated 26-9-2024, under the signature of
concerned Commissioner of Customs was filed before the Court on 27-9-
2024 followed by another Status Report in the form of affidavit dated 14-
10-2024 under the signature of concerned Commissioner of Customs.
Having gone through the record, it is noted that in the inquiry report,
copy of which, is annexed with the last Status Report dated 14-10-2024, it
is recorded in Para No.6(d) that the panel counsel did not communicate
the Court direction to the Centralized Legal Cell. In view thereof, Court
finds it expedient in the interest of justice to call for the comments from
the said panel counsel namely Sh. Satish Aggarwala, Advocate who was
previously representing defendant nos. 2 and 3 in this matter, for next
date. ... ..."
x x x
... ... In view of above discussion, the Show Cause Notice is kept pending
and before issuing appropriate directions, the Court deems it appropriate
to have benefit of the comments of the panel counsel of defendant nos. 2
and 3, as directed hereinabove, and to go through the Manual, 2019.
Accordingly, the Ahlmad is directed to prepare separate file in this regard
and to register it in the Misc. category and to place the copies of orders
dated 20-1-2024 onwards till date, as also the copies of entire
communications previously placed on record by the previous panel
counsel of defendant nos. 2 and 3 and copies of all the Status Reports by
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 6 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
way of affidavits filed from time to time, in the said Misc. File and to put
up the same before this Court on the next date.
Ahlmad is further directed to call for the comments from panel counsel
namely Sh. Satish Aggarwala, Advocate after providing copy of the
Enquiry Report filed alongwith the Status Report dated 14-10-2024 for his
information and necessary compliance.
The Misc. File is directed to be placed before this Court for issuing
appropriate directions on 24-10-2024 at 12:30 p.m. ... ..."
12. Therefore, by virtue of the order dated 19.10.2024, wherein the
learned Trial Court has categorically acknowledged that "Vide separate
detailed judgment of even date, announced in open court, the suit is decreed
in favour of plaintiff and against the defendants with cost of the suit. Decree
sheet be drawn up." as also ordered to consign the file pertaining to CS
(COMM) 130/2023 instituted by the respondent to the record room. In
effect, the learned Trial Court could not have given any direction for
opening a new file i.e. MISC DJ/3620/2024 by suo moto assuming
jurisdiction and take up the same and pass repeated directions therein on
24.10.2024, 11.11.2024 and 17.01.2025.
13. As per the settled position of law, a Court which does not statutorily,
or otherwise, have jurisdiction to try and entertain a proceeding, cannot suo
moto confer/ assume jurisdiction upon itself by any manner and/ or any
reason whatsoever. What emerges therefrom is that the learned Trial Court
had, even after passing of the judgment and decree dated 19.10.2024 suo
moto conferred/ assumed jurisdiction of its own for the best reasons known
to itself.
14. Reliance in this regard is placed upon Harshad Chiman (Supra),
wherein the Hon'ble Supreme Court has been held as under:-
"30. We are unable to uphold the contention. The jurisdiction of a
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 7 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
court may be classified into several categories. The important categories
are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and
(iii) Jurisdiction over the subject matter. So far as territorial and
pecuniary jurisdictions are concerned, objection to such jurisdiction has
to be taken at the earliest possible opportunity and in any case at or
before settlement of issues. The law is well settled on the point that if
such objection is not taken at the earliest, it cannot be allowed to be
taken at a subsequent stage. Jurisdiction as to subject matter, however,
is totally distinct and stands on a different footing. Where a court has
no jurisdiction over the subject matter of the suit by reason of any
limitation imposed by statute, charter or commission, it cannot take up
the cause or matter. An order passed by a court having no jurisdiction
is nullity.
31. In Halsbury's Laws of England, (4th edn.), Reissue, Vol. 10; para
317; it is stated 317. Consent and waiver. Where, by reason of any
limitation imposed by statute, charter or commission, a court is
without jurisdiction to entertain any particular claim or matter, neither
the acquiescence nor the express consent of the parties can confer
jurisdiction upon the court, nor can consent give a court jurisdiction if
a condition which goes to the jurisdiction has not been performed or
fulfilled. Where the court has jurisdiction over the particular subject
matter of the claim or the particular parties and the only objection is
whether, in the circumstances of the case, the court ought to exercise
jurisdiction, the parties may agree to give jurisdiction in their particular
case; or a defendant by entering an appearance without protest, or by
taking steps in the proceedings, may waive his right to object to the
court taking cognizance of the proceedings. No appearance or answer,
however, can give jurisdiction to a limited court, nor can a private
individual impose on a judge the jurisdiction or duty to adjudicate on a
matter. A statute limiting the jurisdiction of a court may contain
provisions enabling the parties to extend the jurisdiction by consent."
32. In Bahrein Petroleum Co., this Court also held that neither
consent nor waiver nor acquiescence can confer jurisdiction upon a
court, otherwise incompetent to try the suit. It is well-settled and needs
no authority that 'where a court takes upon itself to exercise a
jurisdiction it does not possess, its decision amounts to nothing.' A
decree passed by a court having no jurisdiction is non-est and its
validity can be set up whenever it is sought to be enforced as a
foundation for a right, even at the stage of execution or in collateral
proceedings. A decree passed by a court without jurisdiction is a coram
non judice.
33. In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 8 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
1954 SC 340, this Court declared;
"It is a fundamental principle well established that a decree
passed by a court without jurisdiction is a nullity and that its
invalidity could be set up whenever and it is sought to be
enforced or relied upon, even at the stage of execution and even
in collateral proceedings. A defect of jurisdiction strikes at the
very authority of the court to pass any decree, and such a defect
cannot be cured even by consent of parties." (emphasis
supplied) ... ..."
[Emphasis supplied]
15. Reliance is also placed upon Dr. Jagmittar Sain Bhagat (Supra)
wherein, the Hon'ble Supreme Court has held as under:-
"9. Indisputably, it is a settled legal proposition that conferment of
jurisdiction is a legislative function and it can neither be conferred with
the consent of the parties nor by a superior Court, and if the Court
passes a decree having no jurisdiction over the matter, it would amount
to nullity as the matter goes to the roots of the cause. Such an issue can
be raised at any stage of the proceedings. The finding of a Court or
Tribunal becomes irrelevant and unenforceable/ inexecutable once the
forum is found to have no jurisdiction. Similarly, if a Court/ Tribunal
inherently lacks jurisdiction, acquiescence of party equally should not
be permitted to perpetuate and perpetrate, defeating the legislative
animation. The Court cannot derive jurisdiction apart from the Statute
x x x
11. Law does not permit any court/tribunal/authority/forum to usurp
jurisdiction on any ground whatsoever, in case, such a authority does
not have jurisdiction on the subject matter. For the reason that it is not
an objection as to the place of suing;, "it is an objection going to the
nullity of the order on the ground of want of jurisdiction". Thus, for
assumption of jurisdiction by a court or a tribunal, existence of
jurisdictional fact is a condition precedent. But once such jurisdictional
fact is found to exist, the court or tribunal has power to decide on the
adjudicatory facts or facts in issue. ... ..."
16. The judicial dictum cited above clarifies the existing legal position as
it stands today.
17. At the end of the day, the learned Trial Court was dealing with
CS(COMM) 130/2023, being a suit for decree of permanent injunction
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 9 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
restraining the defendant no.1 therein along with other ancillary reliefs
therewith, which stood decreed on 19.10.2024, leaving nothing surviving
therein.
18. Under these circumstances, after decreeing the suit vide the judgment
and decree dated 19.10.2024, the learned Trial Court could not have
proceeded and/ or passed the order dated 19.10.2024, especially, since after
passing of the decree, the file was "consigned to the record room" and the
learned Trial Court became functus officio and it did not profess/ have any
'special powers' to either reopen and/ or keep it pending for a purpose not
connected with the proceedings, more so, since it was never part of the lis
inter se the parties before it. Despite thereto, the learned Trial Court
commenced proceedings in MISC DJ/3620/2024. Thus, under the existing
scenario, the order dated 17.01.2025 passed by the learned Trial Court is
non-est. This Court reiterates that jurisdiction is conferred not assumed. The
learned Trial Court erred in moving ahead with suo moto commencing with
the proceedings in MISC DJ/3620/2024 without having jurisdiction to do so.
As per the settled position of law, a Court which does not statutorily, or
otherwise, have jurisdiction to try and entertain a proceeding cannot suo
moto confer/ assume jurisdiction upon itself in any manner and/ or any
reason whatsoever.
19. Admittedly, even though the petitioners have participated in MISC
DJ/3620/2024 before the learned Trial Court and had given up their
challenge to all the orders barring that of 17.01.2025 passed therein before
this Court on 02.05.2025, the same would not and in fact cannot preclude
this Court to take into account the cumulative facts that the learned Trial
Court is acting without any jurisdiction to try and/ or entertain the
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 10 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
proceedings not before it and accordingly proceed for adjudication of the
present petition under Article 227 of the Constitution of India which
empowers the High Courts to exercise "...superintendence over all Courts
and Tribunals throughout the territories in relation to which it exercises
jurisdiction".
20. Even though the law qua exercising the rights under Article 227 of the
Constitution of India is well settled that the High Courts should not exercise
its power of superintendence at the drop of a hat, however, at the same time,
it is also a settled position of law that on coming across any patent perversity
in the orders of any Court and/ or Tribunal which is glaringly visible, the
High Courts applying the equitable principles, should exercise its power to
keep strict overall administrative and judicial control over any Court and/ or
Tribunal under its jurisdiction. The High Courts are required to step in, if
called for, when such a situation, as above, is brought to the notice.
21. The present case is such wherein, the patent error is apparent on the
face of the record, which if permitted to stand, shall lead to traversity of
justice. The learned Trial Court cannot be allowed to proceed against the
Statute and this Court has to stand by the principles of equity, justice and
good conscience, more particularly, when the suit itself stood decreed on
19.10.2024 by the very same learned Trial Court.
22. As a result, upon a wholistical consideration of the factual matrix
involved coupled with the provisions of Statute, as also the existing position
of law, in the considered opinion of this Court, the present petition under
Article 227 of the Constitution of India is maintainable in the present form
before this Court.
23. In view thereof, the present petition is allowed and the order dated
Signature Not Verified
Digitally Signed CM(M)-IPD 17/2025 Page 11 of 12
By:BABLOO SHAH
Signing Date:17.05.2025
14:12:23
17.01.2025 passed by the learned Trial Court in MISC DJ/3620/2024 is set
aside. Resultantly, the proceedings initiated by the learned Trial Court in
MISC DJ/3620/2024 and the orders passed therein are also set aside.
24. A copy of this order be sent to the concerned District Judge for
information and compliance.
25. The present petition alongwith the pending applications stands
disposed of.
SAURABH BANERJEE, J.
MAY 15, 2025/So
