Vikram Roller Vs KRBL Ltd-J.R.Midha

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*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(COMM) 587/2018

M/S VIKRAM ROLLER FLOUR MILLS LTD. ..... Plaintiff Through: Mr.R.K. Jain, Advocate

versus

M/S KRBL LTD.

Through:

..... Defendant

Mr.Ajay Amitabh Suman, Advocate

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

O R D E R

%                         30.10.2018

I.A. 14446/2018

1.                 Issue notice. Learned counsel for the defendant accepts notice.

2.                 For the reasons stated in the application, delay in filing the appeal is condoned.

3.                 Application disposed of.

O.A. 132/2018

4.                 The plaintiff has instituted this suit for infringement of trade-mark, copyright, passing off and damages against the defendant. The plaintiff case is that in 1975, the plaintiff adopted and started using the trade-mark “INDIA GATE” in respect of five items mentioned in paragraph 4 of the plaint.

5.                 The defendant, in his written statement, disputed the plaintiff’s claim of adoption of the plaintiff’s trade-mark in the year 1975. The defendant claims to have adopted the trade-mark “INDIA GATE” in January, 1993. According to the plaintiff, the defendant adopted the trade-mark “INDIA GATE” after 1993.

6.                 The issues in this case were framed on 23^rd October, 2013. The examination and cross-examination of PW1 is already over.

7.                 An important aspect in this case is to determine when the parties adopted and used the trade-mark “INDIA GATE”.

8.                 On 20^th November, 2017, the plaintiff filed an affidavit by way of evidence of PW2. Along with an affidavit, the plaintiff filed copies of the four documents which were not on record. The plaintiff, therefore, filed I.A. 860/2018 under Order VII Rule 14 of the Code of Civil Procedure for permission to place the said documents on record.

9.                 The four documents filed by the plaintiff along with affidavit of PW2 are the copies of the four directories of the year 1990, 1996, 1999 and 2000 which contain the advertisement of the plaintiff. The reason given by the plaintiff for late filing of the said documents is that the said documents were traced on 10^th November, 2017 by the plaintiff’s Accounts Manager, Bajrang Lal Pareek from the godown of the plaintiff company. According to the plaintiff, the old records were stacked beneath the old packing material stored in the godown. The plaintiff filed the copies of the said documents with the affidavit of PW2 within one week of tracing of the said documents. According to the plaintiff, the documents are relevant for determining the real issue between the parties as to the period when they used the trade-mark “INDIA GATE”.

10.            Learned Joint Registrar dismissed I.A. 860/2018 on the ground that the documents were in possession of the plaintiff and the plaintiff could have traced out the said documents with due diligence.

11.            The plaintiff’s appeal was taken up for hearing yesterday when learned counsel for the defendant urged that the documents are forged and fabricated whereupon this Court directed the plaintiff to produce the original documents before this Court and the case was listed for today.

12.            The plaintiff has today produced the four original Directories which contain the advertisement of the plaintiff. The original directories have been seen by this Court and the same has also been shown to the counsel for the defendant. Counsel for the defendant again disputes the genuineness of the directories. The submission of the counsel for the defendant is irresponsible and is rejected. This Court does not find the directories to be forged and fabricated.

13.            Learned counsel for the defendant urged at the time of hearing that there is a huge delay on the part of the plaintiff to place the documents on record and, therefore, the documents should not be taken on record. It is submitted that the documents were in possession of the plaintiff and he could have traced out with due diligence. Reliance in placed on Asia Pacific Breweries v. Superior Industries, 158 (2009) DLT 670, Capital Meters Limited v. S. Johnflex Industries, 221 (2015) DLT 606 and Polyflor Limited v. A.N. Goenka, 2016 (159) DRJ 664.

14.            This Court is of the view that the documents sought to be placed on record by the plaintiff are relevant to determine the real issue between the parties with respect to the period when they adopted and used the trade-mark “INDIA GATE”.

15.            There is certainly delay on the part of the plaintiff to produce the documents but the plaintiff has explained the same. The plaintiff plea that the said documents were stacked beneath the old packing material stored in the godown and could be traced only on 10^th November, 2017 is plausible considering that the plaintiff does not gain anything by not filing these documents earlier or by withholding the said documents. The aforesaid documents also do not appear to be forged and fabricated; Of course, the plaintiff will have to prove the said documents in accordance with law. The judgments relied upon by counsel for the defendant is in the facts of those

cases.

16.            This Court is satisfied that the plaintiff has shown sufficient cause of delay in filing the documents.

17.            The appeal is allowed and the impugned order dated 03^rd July, 2018 is set aside. I.A. 860/2018 is allowed and the plaintiff is permitted to tender the original documents filed before Joint Registrar at the time of examination of PW2.

18.            Copy of this order be given dasti to counsels for the parties under signatures of the Court Master.

J.R. MIDHA, J.

OCTOBER 30, 2018

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