Withdrawal of earlier Counter Claim without any liberty bars the Party to file a new case
Background of the Case:
The case involves a legal dispute between VIP Pharma and Rhydburg Pharma, with the former filing a suit against the latter in the Delhi High Court. The case revolves around allegations of trademark infringement, copyright violation, and unfair competition. VIP Pharma claims that Rhydburg Pharma has been selling products under a trademark that is identical or deceptively similar to VIP Pharma's trademark, causing harm to their business, trademark, copyright, goodwill, and reputation.
Issue of the Case:
The primary issue in the case is whether VIP Pharma's suit should be allowed to proceed, given that they had previously filed a Counter Claim in the District Court, which was later withdrawn. The defendant, Rhydburg Pharma, argues that the withdrawal of the Counter Claim without seeking permission to file a new case bars VIP Pharma from pursuing the present suit under the provisions of the Code of Civil Procedure, 1908 (CPC).
Contentions of the Parties:
VIP Pharma contends that the Counter Claim filed in the District Court was withdrawn due to insufficient pleadings and prayers, and they have now filed a more comprehensive suit in the High Court.
Rhydburg Pharma argues that the Counter Claim and the present suit involve the same parties, the same trademarks, the same averments, the same time periods, and the same causes of action. They assert that the plaintiff cannot be allowed to take advantage of the withdrawal to file a new case without prior permission.
Issues Dealt with by the Court:
The court had to determine whether the withdrawal of the Counter Claim by VIP Pharma precludes them from filing the present suit, considering the provisions of Order VII Rule 11 and Section 12 of the CPC, read with Order XXIII Rule 1(4) CPC. The court also had to consider whether the new suit is barred by law due to the earlier withdrawal.
Reasoning and Final Decision:
The court found that the Counter Claim and the present suit are essentially the same, with the new suit merely including additional claims that were omitted from the Counter Claim. The court held that the withdrawal of the Counter Claim without seeking permission to file a new case bars VIP Pharma from pursuing the present suit. The court relied on the principle that a plaintiff is barred from suing on a portion of a claim that was intentionally omitted or relinquished, unless they obtain leave of the court.
The court also noted that the plaintiff had not disputed the Vakalatnama (power of attorney) or the statement given by their counsel at the time of the withdrawal of the Counter Claim. Therefore, the court concluded that the present application of the defendant is liable to succeed, and the present suit of the plaintiff is liable to be rejected under Order VII Rule 11(d) CPC.
In its final decision, the court allowed the defendant's application and dismissed the plaintiff's suit, stating that the suit is barred by law due to the provisions of Order XXIII Rule 1(4) CPC and Section 12 CPC. The court emphasized that the plaintiff's attempt to file a new case after withdrawing the Counter Claim without proper permission is not permissible under the law.
Case Citation: VIP Pharma Vs Rhydburg Pharma.: 13.09.2024:CS(COMM) 110/2023: 2024:DHC7042:Delhi High Court: Sarrabh Banerjee, H.J.
Written by: Advocate Ajay Amitabh Suman
IP Adjutor [Patent and Trademark Attorney] United & United
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