Madras High Court
Also At vs Butterfly Gandhimathi Appliances Ltd on 4 June, 2024
Author: M.Sundar
Bench: M.Sundar
O.S.A (CAD) No.14 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
O.S.A (CAD) No.14 of 2024
&
C.M.P.No.3237 of 2024 in O.S.A (CAD) No.14 of 2024
TTK Prestige Ltd.
Having its registered office at
Plot No.38, SIPCOT Industrial Complex
Hosur, Tamil Nadu-635 126
India
Also at
No.91, Santhome High Road
Karpagam Avenue
Raja Annamalai Puram
Chennai – 600 028
Represented by its Power of Attorney
Mr.G.Ramesh Babu
E-mail: [email protected] ... Appellant
Vs.
Butterfly Gandhimathi Appliances Ltd.,
Having its registered office at
143 Pudupakkam Village
Kelambakkam – Vandalur Road
Kancheepuram District – 603 103
Tamil Nadu, India
https://www.mhc.tn.gov.in/judis
1/9
O.S.A (CAD) No.14 of 2024
Also at
No.34, (2nd Floor)
Rajiv Gandhi Salai
Egattur Village, Chennai – 600 130
Tamil Nadu, India .. Respondent
Original Side Appeals filed under Section 13 of Commercial
Courts Act, 2015 read with Order XLIII Rule of CPC read with Order
XXXVI Rule 9 of Original Side Rules, to set aside the judgment under
appeal dated 13.12.2023 in O.A.No.72 of 2023 in C.S (Comm.Div.)
No.22 of 2022.
For Appellant : Mr.R.Parthasarathy
Senior counsel
for Ms.Tanvisinha
For Respondent : Mr. P.R.Raman
Senior counsel
Assisted by Mr.Hemanth Daswani
Instructed by Mr.G.S.Kanagavel
of M/s.Daswani and Daswani (Law Firm)
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.)
This judgment will now dispose of the captioned 'Original Side
Appeal' ['OSA' for the sake of brevity] and captioned 'Civil Miscellaneous
Petition' ['CMP' for the sake of brevity] thereat.
2. Captioned intra-court appeal is directed against an 'order
dated 13.12.2023 made in O.A.No.72 of 2023 in C.S (Comm.Div.) No.22
of 2023' [hereinafter 'impugned order' for the sake of brevity] made by the
Commercial Division of this Court.
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3. We leave open the question of maintainability of the appeal
as the appeal is essentially under Section 13(1A) of the Commercial
Courts Act, 2015 which takes us to Order XLIII and Section 104 of 'the
Code of Civil Procedure, 1908' ['CPC' for the sake of brevity] as both
sides have agreed to have the main suit heard out by resorting to
appointment of a dedicated Commissioner for recording evidence.
4. This Court is informed that pleadings are complete,
inspection of documents followed by admission and denial has been
completed and issues have been framed.
5. In the light of the trajectory the matter is taking before us,
short facts will suffice. Factual matrix in a nutshell is that TTK Prestige
Limited' [hereinafter 'TTK' for brevity] presented a plaint dated
06.01.2023 complaining of infringement of its registered design being
Design Registration No.324727-001. Further facts are that the design
registration is in shape/configuration; that the design is applied qua
pressure cookers; that inter-alia reliefs of permanent injunction, delivery
of infringing products, accounts of profits, costs and regular residuary
limb constitute the prayer in the plaint; that suit summons was served on
sole defendant 'Butterfly Gandhimathi Appliances Limited' [hereinafter
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'Butterfly' for the sake of convenience]; that Butterfly entered appearance
and filed a written statement dated 27.02.2023 inter alia assailing the
validity of the design registration besides pleading lack of novelty and
prior publication; that thereafter the suit proceeded and those details have
been captured supra; that it will suffice to say that issues have been
framed and recording of evidence has to commence; that in the
interregnum, the impugned order came to be made dismissing injunction
application of TTK qua purported /alleged piracy of aforementioned
registered design vide Section 22 of Designs Act, 2000.
6. We had the benefit of hearing Mr.R.Parthasarathy, learned
Senior counsel instructed by Ms.Tanvisinha for the appellant and
Mr.P.R.Raman, learned Senior counsel instructed by Mr.G.S.Kanagavel
and assisted by Mr.Hemant Daswani of M/s.Daswani and Daswani (Law
Firm) on the 'VC' ['Videoconferencing'] platform for the respondent. To
be noted, this is a hybrid hearing, which is a regular/routine/daily feature
in this Court.
7. As already alluded to supra, the question of maintainability
in the light of Section 13 (1A) of CCA which takes us to Order XLIII and
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Section 104 of CPC, is left open and as the parties have agreed to have
the main suit decided by resorting to a dedicated Commissioner (for
recording evidence) mechanism, the following order is made:
i) Mr.K.Babu, former District Judge in Tamil Nadu
District Judiciary residing at Old No.19, New No.55, Indira
Gandhi Street, K.K.Nagar, Trichy-21 [Mob:9486586677] is
appointed as the Commissioner to record evidence;
ii) The Commissioner will not have any
adjudication powers;
iii) If there are any objections regarding marking of
any documents, objections will be recorded by the
Commissioner for being decided by the Commercial Division;
iv) The sittings of the Commissioner can be in the
Arbitration Centre or in the Mediation Centre, which are
adjuncts of this Court or any other convenient venue or even
on VC;
v) The Directors of Mediation and Arbitration
Centres shall facilitate the sittings, if approached;
vi) The rent, travel and other incidental expenses
for recording of evidence proceedings shall be borne by TTK
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and Butterfly in equal moieties;
vii) The remuneration of learned Commissioner for
this entire exercise is fixed at Rs.3,00,000/- [Rupees Three
Lakhs only] and this sum shall be paid in equal moieties,
i.e.,Rs.1,50,000/- each (TTK and Butterfly), to the learned
Commissioner;
viii) Learned Commissioner is requested to
commence recording of evidence within three weeks from
today subject to convenience of all concerned and complete
the exercise within four weeks from the date of the first
sitting. If any extension beyond four weeks is required, it is
open to the learned Commissioner to grant such extension if a
joint memo is filed by both sides. Otherwise, the matter has
to be placed before the Commercial Division;
ix) After recording of evidence i.e., oral evidence
and documentary evidence, the entire deposition and
documents (Exhibits) shall be sent by the learned
Commissioner to the learned Registrar General of this Court
in a sealed cover which in turn shall be placed before the
Commercial Division as and when called for;
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x) After completion of the aforementioned exercise,
it is open to both sides to mention before the Hon'ble Judge
presiding over the Commercial Division for listing of the
matter;
xi) We make it clear that the consent is only for
having the main matter heard out by resorting to dedicated
Commissioner mechanism for recording evidence and shall
not be construed in any other manner;
x) We also further make it clear that observations
made in the impugned order or in other words, impugned
order (in its entirety) will neither impede nor give any
impetus in the main suit being decided by the Commercial
division. To put it differently, the Commercial Division shall
decide the main suit untrammeled by the impugned order;
xi) We further make it clear that we have not
expressed any view or opinion on the merits of the matter
more particularly qua paragraphs 21 and 24 of the impugned
order;
xii) When placed before it post recording of
evidence, we request the Commercial Division to dispose of
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the main suit as expeditiously as the business of the
Commercial Division would permit.
Captioned OSA and captioned CMP are disposed of in the
aforesaid manner. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.)
04.06.2024
Index:Yes/No
Neutral Citation: Yes/No
gpa
P.S. I: Upload forthwith
P.S.II : All concerned including the Registry of Madras High Court to
act forthwith on the uploaded soft copy of this proceedings as
uploaded in the official website of this Court. To be noted, the soft
copies uploaded in the official website of this Court are water marked,
besides being QR Coded.
P.S.III: Registry to communicate this order to Mr.K.Babu, former
District Judge, at Old No.19, New No.55, Indira Gandhi Street,
K.K.Nagar, Trichy-21 [Mob:9486586677]
https://www.mhc.tn.gov.in/judis
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
04.06.2024
https://www.mhc.tn.gov.in/judis
