Tuesday, March 3, 2015

ATLAS PLASTIC VERSUS C G ENTERPRISE

COMMENT:  In this case  Hon’ble High Court of Gujarat at Ahmedabad has returned the following  findings.

THIS CASE DEALS WITH THE ISSUE OF AMENDMENT OF PLAINT WHICH IS NECESSITATED BECAUSE OF EVENTS, WHICH OCCURRED DURING PENDENCY OF THE SUIT PROCEEDING.

1. The amendment prayed for is in continuation of the pleadings in the pleadings and the facts have a linkage. In other words, amendment prayed for is merely an addition of pleadings of facts which are subsequent happening. It could not be said that amendment prayed for introduces facts which are totally foreign to the controversy. They are in the nature of supplementary facts relating to subsequent developments. Amendment does not change the nature of suit at all. The amendment is necessary for wholesome adjudication of the controversy between the parties

COMPLETE TEXT OF JUDGEMENT:

                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                           CIVIL APPLICATION (OJ) NO. 342 of 2012
                                   In CIVIL SUITS NO. 2 of 2012

=======================================================
ATLAS PLASTIC....Applicant(s)
Versus
C G ENTERPRISE....Respondent(s)
======================================================= Appearance:
MR HARSHIL SHAH, ADVOCATE for the Applicant(s) No. 1
MR MITUL K SHELAT WITH MR KALPESH C PATEL, ADVOCATE for the======================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/02/2015
CAV ORDER Learned advocate Mr.R.R. Shah appears for the applicant. Learned advocate Mr.Mitul Shelat for learned advocate Mr.Kalpesh Patel appeared and made submissions on behalf of the respondent. The present Application was considered and heard along with another Civil Application (OJ) No.589 of 2014 which was also for amendment. Both these Applications are interconnected arising from the same Suit proceedings and were heard together.
2. The present Application by the applicant- original plaintiff is filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 praying for O/OJCA/342/2012 CAV ORDER amendment in the plaint.
3. The applicant-plaintiff instituted Civil Suit No.04 of 2011 for declaration, permanent injunction restraining infringement of design, rendition of accounts and delivery up of offending material under the Designs Act, 2000. The Suit was originally instituted before the District Court, Ahmedabad (Rural) at Mirzapur. The same came to be transferred to this Court by order below Exhibit 29 dated 08th February, 2012 in view of provisions of Section 22(4) and Section 90 of the Designs Act, 2000. The Suit came to be re-numbered as Civil Suit No.02 of 2012 as registered before this Court.
3.1 In the Suit, it is the case of the plaintiff stated in nutshell is that it is a sole proprietary concern and has created various designs having novel shapes and configuration of the various types of plastic seals for use in electric meters, gas meters, taxi meters, pay phones, petrol tankers, calibrations, valves, cash box, drums, transformers, etc., and that the plaintiff is the first original creator. It is the case that the defendant is engaged in the business of manufacturing and marketing of locking for closing device and that it is a subsequent registered proprietor of the impugned design No.218986 dated 06th October, 2008 in Class 08-07. The plaintiff has filed cancellation application dated 30th May, 2011 before the Controller of Designs, Kolkatta which is pending. In the Suit, the plaintiff has complained against the sets of passing of design committed by the defendant O/OJCA/342/2012 CAV ORDER by adopting and using the design of the plaintiff and the Suit is also for infringement of plaintiff's registered design No.205868. According to the plaintiff, it commenced the manufacturing of plastic seals in June 1999, prior thereto he was doing job work of various plastic works since 1989. It is the case of the Controller of Designs, Kolkatta has issued statutory protection to said unique design of plastics seal being registered No.205868. It was registered on 01st September, 2006 under the Designs Act.
3.2 The plaintiff has given details of the registrations obtained by it in respect of different types of plastic seals with different designs, shapes and configurations as per the list reproduced hereinbelow.
       Sr.        Design           Design             Class     Date of
       No.                           Regd. No.                     Registration
       1.    Plastic       Seal    179570              03       27.05.1999
       2.    Plastic       Seal    182371              03       17.05.2000
       3.    Plastic       Seal    182372              03       17.05.2000
       4.    Plastic       Seal    193033              03       28.08.2003
       5.    Plastic       Seal    205868             08-07     01.09.2006
       6.    Plastic       Seal    205869             08-07     01.09.2006
       7.    Plastic       Seal    205870             08-07     01.09.2006
       8.    Plastic       Seal    205871             08-07     01.09.2006

3.3          It may be stated that in this Application it is    further        averred       by     the         applicant       that   due   to inadvertence, a bona fide mistake has crept in not mentioning the registered design No.205871 along with registered design No.205868 in paragraphs 3,5,11,12,13,15,17 and 27(b) of the plaint and paragraphs 3,5,11,12,13,15,17 and 29(a) of the injunction application and accordingly the application for amendment of plaint and injunction application has O/OJCA/342/2012 CAV ORDER been filed on 02nd January, 2012 before the District Court of Ahmedabad (Rural) at Ahmedabad in Civil Suit No.04 of 2011, which has been transferred to this Court and re-numbered as Civil Suit No.02 of 2012. It is stated that the said amendment application is pending for hearing before this Court. It may be noted that the said Civil Application No.589 of 2014 was also kept for orders and the order therein is pronounced today.
3.4 As far as the present Application is concerned, applicant has prayed to incorporate the following averments by inserting paragraph 23.1 after paragraph 23 in the plaint.
"23.1 The said cancellation application of the plaintiff pending before the Hon'ble Controller of Designs, Kolkata and the final hearing of the said cancellation petition was held on 27.01.2012. It is further submitted that the plaintiff herein has received the order dated 27.09.2012 allowing the cancellation petition filed by the plaintiff in respect of Registered Design No.218986 of the defendant along with forwarding letter No.218986- D/Cancel dated 27.09.2012 from the Assistant controller of Patents & Designs, Kolkata. Copy of the said order dated 27.09.2012 with its forwarding letter are annexed hereto with the list."
3.5 Respondent has contested the prayer for amendment by filing its reply and it is objected. Affidavit-in-rejoinder is also filed.
4. Heard learned advocate Mr.R.R. Shah for the applicant and learned advocate Mr.Mitul Shelat with learned advocate Mr.Kalpesh Patel for the respondent.
5. From the contents of the aforesaid amendment prayed for, it could be seen that the averments are O/OJCA/342/2012 CAV ORDER sought to be added in the pleadings which are in the nature of subsequent developments. Paragraph 23 existing in the plaint whereafter aforesaid new paragraph is sought to be added reads as under.
"23. The cause of action has arisen when the plaintiff came to know for the first time in the last week of May, 2011 about the registration of the impugned design under No.218986 in class 08-07 by the defendant and immediately thereafter, the plaintiff has filed cancellation petiton thereof before the Controller of Designs, Kolkata. Further the cause of action in the present suit has arisen recently when the plaintiff came across the defendant's suit product under the same design being sold in the market of Ahmedabad and elsewhere in the month of November, 2011. The plaintiff has got knowledge that the defendant is manufacturing and marketing Plastic Seal/Locking For Closing Device under the impugned suit design in a clandestine and surreptitious manner and as such the cause of action is continuous and subsisting against the defendants from day to day till the defendant is restrained from using the said design and selling the said Plastic Seal/Locking for Closing Device in the open market. Moreover, the defendant has also infringed plaintiff's Regd. design by using the same or deceptively similar design and are also guilty of passing off by their design as and for the plaintiff's suit product and thus the defendant is guilty of infringement of plaintiff's Regd. Design under the provisions of Designs Act, 2000 and under section 20 of the Code of Civil Procedure, 1908. the cause of action is continuous and recurring day to day."
6. Therefore the amendment prayed for is in continuation of the pleadings in paragraph 23 and the facts have a linkage. In other words, amendment prayed for is merely an addition of pleadings of facts which are subsequent happening. It could not be said that amendment prayed for introduces facts which are totally foreign to the controversy. They are in the nature of supplementary facts relating to subsequent developments. Amendment does not change the nature of suit at all. The amendment is necessary for wholesome adjudication of the controversy between the parties.
O/OJCA/342/2012 CAV ORDER Therefore, the same could be granted.
7. Accordingly the amendment is granted by allowing the present Application in terms of paragraph 5(A).
(N.V.ANJARIA, J.) Anup



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