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Mr. Shivendra P. Singh and Mr.
Sunil Mishra, Advocates. (M:9953394364)
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..... Petitioners
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Mr. Jayant Mehta, Mr. Sazeed Rayeen and Mr. Ajay
Amitabh Suman, Advocates. (M:9990389539)
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$~32
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IN THE
HIGH COURT OF DELHI AT NEW DELHI
+CM (M) 1509/2019, CM APPLs. 46155/2019 &
46156/2019
VEENUS
SPORTSWEAR PRIVATE LIMITED &
ANR.
Through:
versus
DINESH
JAIN
Through:
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 11.12.2019
1.
The only
issue in this
case is that
the Petitioners/Defendants
(hereinafter ‘Defendants’) have
failed to file the original documents and
only
photocopies of the same were on record at the time of admission/denial.
The Trial
Court has refused permission to exhibit the copies, which are on
record,
on the ground that the originals were not produced at the time of
admission/denial.
2.
The suit is one for injunction
restraining infringement of trademark, passing off, etc. The following issues
were framed in the suit.
“1. Whether
the plaintiff is the Registered Proprietor of the Mark TYCOON Registered under no. 632354 in class 25 and 632353 in
class 15 dated 29th June, 1994 claiming use of the mark since the year 1994, being so, is
he entitled to a decree of infringement action in terms of prayer clause '(a)'?
OPP
2.
Whether the plaintiff is entitled to the remedy of passing off being
prior user of the mark TYCOON since the year 1994? OPP
Or
CM (M)
1509/2019 Page 1 of 3
Whether
the defendant are entitled to the protection of the use of products under the
mark TYCOON under Section 33 of the Trade Marks Act, 1999 being prior user of
the mark to that of the plaintiff? OPD
3.
Whether the plaintiff is entitled to Rendition of Accounts and damages
in terms of prayer clause '(d) & (e)'? OPP
4.
Whether the plaintiff is guilty of concealment of material facts? OPD
5.
Whether suit suffers delay, latches and acquiescence? OPD
6 Whether the plaintiff has never
used the mark TYCOON as a trademark for its products? OPD. Relief.”
3.
One of the issues to be
adjudicated is in respect of prior user of the mark. The Defendants had an
obligation to file the originals of the documents including the invoices to
establish prior user at the stage of admission/denial. However, they have not
done so.
4.
The evidence by way of affidavit
has now been filed by the Defendants. The affidavit seeks to exhibit copies of
the documents which are on record. These documents are not new and the
Plaintiff has notice of these documents. Evidence is being recorded before the
Local Commissioner.
5.
The settled legal position is that
if during recording of evidence before the Local Commissioner, objections are
raised, the Commissioner is to record the objections and proceed with the cross
examination. The objections raised would have to be adjudicated at the final
stage. A similar situation had arisen in the case of Exide Industries Ltd. v. Exide
Corporation
USA, 2014 (58) PTC 200 (Del). The said judgement was also
CM (M)
1509/2019 Page 2 of 3
followed subsequently in M/s. Prakash Oil Corporation & Anr. v.
Brijj Kishan [CM(M) 1002/2018, decided on 19th September, 2019].
6.
In view of the above stated facts
and legal position, the following directions are issued:
1)
The Defendants’ evidence is yet
to commence. The Defendants shall place on record all the original invoices.
Only the original documents now annexed with the affidavit shall be
exhibited/marked in accordance with law, subject to the objections to be taken
by Plaintiff being recorded by the Local Commissioner.
2)
The question as to whether these
documents are relevant and if the same are necessary for final adjudication and
are admissible in evidence, would be decided prior to the commencement of the
final arguments in the suit.
3)
If the Plaintiff wishes to file
any rebuttal evidence in respect of these documents, as the evidence of the
Plaintiff stands concluded, they are permitted to do so.
7.
Owing to the delay in filing the
original documents, costs of Rs.50,000/- are imposed upon the Defendants to be
paid to the Plaintiff on or before the next date before the Trial Court. The
Local Commissioner shall record the examination in chief of the Defendants’
witnesses only upon the production of proof of payment of costs.
8.
The petition along with the
pending applications is disposed of in the above terms.
PRATHIBA M. SINGH, J.
DECEMBER 11, 2019/dk
CM (M)
1509/2019 Page 3 of 3
