$~5
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IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
CS(OS) 1422/2009
EVEREADY
INDUSTRIES INDIA LTD. .....
Plaintiff
Through: Mr. Ajay Sahni, Advocate with Mr.
Ankur Sangal, Advocate and Ms.
Sucheta
Roy, Advocate.
Versus
MR.
SANAJAY CHADHA & ANR .....
Defendants
Through: Mr. S.K. Bansal, Advocate with
Mr.
Ajay
Amitabh Suman, Advocate and
Mr. Amit Chanchal Jha, Advocate,
Mr. Rahul
Sharma, Advocate and Mr.
Vinay Shukla, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
O R D E R
% 26.04.2016
I.A. No.3478/2016 (under Order 39 Rule 2A CPC by plaintiff)
1. By this
application under Order 39 Rule 2A of the Code of
Civil Procedure, 1908 (CPC),
plaintiff pleads violation of injunction order
passed by this Court on
21.12.2010 by the defendants. It is the case argued
CS(OS)
No.1422/2009 page 1 of
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before this Court in support of
the application under Order 39 Rule 2A CPC
that defendants are violating the
injunction order on account of using the
EVEREADY device i.e
the stylization and font of the depiction of the
wordmark EVEREADY.
2. In order
to understand as to what is the scope of the injunction
order granted in favour of the
plaintiff and only whose violation will result
in a cause of action arising
under Order 39 Rule 2A CPC, let me reproduce
the operative portion of the
order dated 21.12.2010 whereby the plaintiffs’
injunction application
was allowed to an extent
and disposed of. The
relevant portion of the order
dated 21.12.2010 reads as under:-
“In view of the facts and circumstances discussed
above, I am of the considered view that the plaintiff is not entitled to grant
of ad interim injunction against use of the word mark EVEREADY by the
defendants in respect of the screw drivers and pliers.
Admittedly, the defendants have already been
restrained by IPAB from using EVEREADY (device). Hence, there is no need for
the Court to injunct against use of this device by the defendants. The defendants, however, will not use the word trademark ‘EVEREADY’
except in respect of the screw drivers and pliers. If, however, the
registration in favour of the defendant is cancelled, they will forthwith stop
the use of the word mark ‘EVEREADY’ even in respect of screw drivers and
pliers. The interim order passed by this Court on August 24, 2009 stands
modified accordingly. The observation made in this order being tentative and
having been necessitated for the purpose of taking a prima facie view, will not
CS(OS)
No.1422/2009 page 2 of
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affect the decision of the suit in any manner. The
applications stand disposed of.
The parties are directed to appear before the Joint
Registrar for admission/denial of documents on 14th February, 2011. The matter be
listed for framed of issues on 04th April, 2011.” (underlining added)
3. It is trite that an issue of contempt or violation of the injunction
order by invoking Order 39 Rule 2A CPC has to be understood in terms of clear
cut directions which are issued by the court. Since contempt is a very serious
matter, it is the exact violation of the injunction order which will result in
contempt by the guilty party. The operative portion of the order dated
21.12.2010 has been reproduced above, and let us examine the same as to whether
the defendants are violating the same by using the wordmark EVEREADY in the
form of a device and by stylization and font of EVEREADY as is done by the
plaintiff.
4. I am afraid the application of the plaintiff is misconceived inasmuch
as the operative portion of the order dated 21.12.2010 reproduced above in fact
states that there was no need for the Court to grant injunction against the use
of the device by the defendants. This was said by the learned Single Judge
because there was already a restraint order against the
CS(OS)
No.1422/2009 page 3 of
6
defendants by IPAB from using the device EVEREADY i.e the particular
stylization and font of the wordmark EVEREADY. Therefore, once this Court has
specifically observed that there is no need for granting injunction with
respect to the EVEREADY device i.e stylization and font of the wordmark
EVEREADY, there is no injunction granted to result in violation of any
injunction order passed by the Court.
5. I must note that I put it repeatedly to the counsel for the plaintiff
that possibly the remedy of the plaintiff is to file independent contempt
proceedings on account of violation of the injunction order issued by the IPAB,
but, the counsel for the plaintiff insists that this Court should hear and
dispose of the present application.
6. In view of the above since there is no injunction order granted by
this Court against use of the EVEREADY device by the defendants, there is no
violation of any injunction order passed by this Court for the plaintiff to
invoke Order 39 Rule 2A CPC.
Application
is therefore dismissed.
+ CS(OS) No.1422/2009
7. As
recorded in the order dated 15.3.2016 and which is also the
CS(OS)
No.1422/2009 page 4 of
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stand of the plaintiff today that evidence in this case be recorded by a
Local Commissioner whose expenses will be borne by the plaintiffs, accordingly,
Sh.D.S. Bawa, ADJ (retd.) Mobile No.8860827313 is appointed as a Local
Commissioner to record evidence in this case. Fees of the Local Commissioner
are fixed at Rs.75,000/- plus all out of pocket expenses which shall be borne
by the plaintiffs and which will cover 10 dates on which evidence is recorded.
In case, there are more than 10 dates for recording of evidence, then, Local
Commissioner will be paid a sum of Rs.5,500/- for each date for recording of
evidence. Both the parties will not record evidence of more than three
witnesses as is agreed to before this Court. Necessary space will be provided
by the plaintiffs in the High Court premises so that judicial file does not go
outside the High Court premises. Local Commissioner will keep in mind the ratio
of the judgment of the Supreme Court in the case of Bipin Shantilal Panchal Vs. State
of Gujarat and Anr. (2001) 3 SCC 1 for recording of evidence. Local
Commissioner is requested to expedite the recording of evidence and make
endeavours to complete the recording of evidence within a period of six months
of the first date fixed for recording of evidence.
CS(OS)
No.1422/2009 page 5 of
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8.
Parties will file list of witnesses within six weeks from today. 9. List before
the Local Commissioner for fixing dates of
evidence on 7th July,
2016 at 4.00 P.M.
10. List
before the Court for reporting recording of evidence on 24th
November, 2016.
VALMIKI J. MEHTA, J
APRIL 26, 2016
Ne
CS(OS)
No.1422/2009 page 6 of
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