Madras High Court
Bibin John vs Lifestyle International Private ... on 18 February, 2025
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
A.No.6398 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2025
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
A.No.6398 of 2024
in
C.S.(Comm. Div) No.2 of 2024
Bibin John
Trading as MELANGE DESIGNING STUDIO,
Dwarai Swami Lane,
MG Road, Ernakulam,
Kerala 682 035. ... Applicant/
Defendant
-vs-
LIFESTYLE INTERNATIONAL PRIVATE LIMITED,
Express Avenue, 49 50L, Block No.9,
Triplicane Village, Whites Road, Mylapore,
Chennai-600 014
Rep. by its Authorized Representative
Mr.A.Shyam Ravindhar ... Respondent/
Plaintiff
PRAYER: Judges summons filed under Order 14 Rule 8 of O.S. Read
with Order VI Rule 17 r/w. Section 151 of the Code of Civil
Procedure, 1908, praying to permit the Applicant/Defendant to Add
the amendments as set out in the Schedule Judges Summons in the
written statement in C.S.(Comm. Div.) No.2 of 2024.
1/11
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A.No.6398 of 2024
For Applicant : Ms.Reshma Rajagopal
for M/s.M.S.Bharath
For Respondents : Mr.Arun C. Mohan
**********
ORDER
By this application, the defendant seeks leave to amend the
written statement. The nature of amendments is clear from the
schedule to the Judge's summons. The suit is at the stage of parties
having filed affidavits of admission/denial in respect of documents
filed by the counter party concerned. Issues have not been framed as
on date.
2. Learned counsel for the applicant submits that the written
statement contains the assertion that the defendant is a registered
proprietor of the trade mark
under Class 40 and that, consequently, the suit for infringement is
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not maintainable. Therefore, learned counsel submits that the
amendment, by way of insertion of paragraph 21B, is in consonance
with the written statement and does not cause prejudice to the
plaintiff.
3. As regards the proposed insertion of paragraph 21A, learned
counsel submits that non-use of the trade mark
by the plaintiff has been dealt with in the written statement at
paragraphs 22 and 30. The proposed amendment, by insertion of
paragraph 21A, merely expands on what is stated in the above
mentioned paragraphs. Learned counsel further submits that the
proposed amendment is intended to meet any objections that the
invalidity of the plaintiff's trademark was not expressly asserted in
the written statement.
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4. In support of these contentions, learned counsel referred to
and relied upon the following judgments:
a. Life Insurance Corporation of India v. Sanjeev Builders Private
Limited and Others, MANU/SC/1093/2022, particularly paragraph 25
thereof, for the proposition that courts are more generous in allowing
an amendment of the written statement as it is unlikely to cause
prejudice to the plaintiff.
b. Baldev Singh and Others v. Manohar Singh and Another, 2006
SCC OnLine SC 799, especially paragraph 15 thereof, for the
proposition that adding a new ground of defence or altering a
defence does not raise the same problem as adding, altering or
substituting any cause of action.
c. B.K.Narayanan Pillai v. Parameswaran Pillai and Another, 1999
SCC OnLine SC 1315, particularly paragraph 5 thereof, for the
principle that pleas which are neither inconsistent nor repugnant to
the pleas raised previously in the written statement should be
permitted by way of amendment.
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d. Thyro Laboratories v. Thyrocare Technologies Ltd. order dated
11.12.2024 in A.No. 4843 of 2024 in C.S.No.57 of 2015, for the principle
that amendments may be allowed in commercial suits even after the
trial has commenced.
5. In response to these contentions, learned counsel for the
respondent/plaintiff submits that the erstwhile counsel on record
filed the written statement on 30.04.2024. Merely because the new
counsel is of the view that additional pleas should be raised, in the
absence of evidence that such additional pleas could not be raised in
spite of the exercise of due diligence, the request for amendment is
liable to be rejected. By referring to Order VIII of the Code of Civil
Procedure, 1908 (the CPC), particularly Rules 1, 2, 3 and 3A thereof,
learned counsel contended that the defendant is under an obligation
to raise any jurisdictional objection by specifying the reasons for such
objection and is, in fact, required, wherever able, to indicate the
Court which has jurisdiction.
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6. Learned counsel next contended that Order VI Rule 17 of the
CPC should not be construed in isolation in the context of a
commercial suit. Put differently, his contention is that the proviso to
Rule 1 of Order VIII prescribes an outer limit of 120 days after which
the defendant forfeits the right of filing a written statement. Unless
Order VI Rule 17 CPC is construed strictly in the light of the proviso
to Rule 1 to Order VIII, he submits that the mandate of the proviso
would be circumvented by filing a written statement bereft of
particulars and thereafter lodging an application for amendment. In
support of these contentions, learned counsel referred to an order of
this Court in Application No.8944 of 2018 in C.S.No.282 of 2018,
wherein this Court rejected an application for permission to file an
additional written statement with a counter claim after noticing the
outer time limit of 120 days prescribed in the proviso to Rule 1 of
Order VIII.
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7. Upon taking stock of the rival contentions, the first aspect to
be noticed is that the suit is at the pre-trial stage. As per the proviso
to Order VI Rule 17 of the CPC, an application for amendment
should not be allowed after the trial has commenced unless the court
comes to the conclusion that in spite of due diligence, the applicant
was not in a position to raise the matter before the commencement of
trial. The schedule to the Commercial Courts Act sets out the
amendments to the CPC in its application to commercial disputes.
Order VI Rule 17 remains unamended in its application in
commercial disputes. Therefore, the requirements of the proviso to
Order VI Rule 17 cannot be extended to and applied to a commercial
dispute at the pre-trial stage. At the same time, the contention that
the mandate of the proviso to Rule 1 of Order VIII of the CPC should
not be permitted to be indirectly circumvented cannot be brushed
aside.
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8. In my view, if the proposed amendments to the written
statement are so extensive and would tantamount to a substitution
of the written statement, it would facilitate the circumvention of the
proviso to Rule 1 of Order VIII and should not be permitted. This
determination should be made by examining the written statement
and the proposed amendments, which I turn to next.
9. In proposed paragraph 21A, the defendant asserts that the
plaintiff has not filed documents to prove the use of the trade mark
“MELANGE” from the year 2004 as claimed by the plaintiff in the
plaint. The defendant proceeds further in proposed paragraph 21A to
assert that, in the absence of proof of actual use, the adoption was not
honest and the registration is, consequently, invalid and liable to be
cancelled. As regards non-use, as contended by learned counsel for
the defendant, there are averments of non-use both in paragraphs 21
and 30. The consequential assertion that the adoption was not
honest and that the registration is invalid and liable to be cancelled
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does not find place in the written statement. To that extent, the
plaintiff would be prejudiced unless the plaintiff were to be given an
opportunity to respond to such assertion.
10. As regards proposed paragraph 21B, it appears that the
averments therein are intended to provide a foundation to challenge
jurisdiction on the ground that the defendant is also the registered
proprietor of the mark
Averments to that effect are contained in paragraph 22 of the written
statement. The proposed paragraph 21B expands on paragraph 22 by
further asserting that the Court does not have territorial jurisdiction
and that the cause of action, including in respect of passing off, has
not arisen within the jurisdiction of the Court. To the extent that
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proposed paragraph 21B expands on paragraph 22, it is just and
necessary that the plaintiff be given an opportunity to respond
thereto.
11. The precedents cited by learned counsel for the plaintiff
instruct that applications for amendment at the instance of the
defendant are liable to be construed liberally because they have no
impact on the cause of action or the fundamental character of the
suit. As noticed earlier, this application is at the pre-trial stage. By
taking all these aspects into account, this application is allowed
subject to the right of the plaintiff to file a reply statement in
response. Such reply statement shall be filed on or before 18.03.2025.
Post the matter on 18.03.2025.
18.02.2025
kal (½)
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SENTHILKUMAR RAMAMOORTHY J.
kal
in
18.02.2025
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