$~33
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
FAO 103/2015
M/S RSPL HEALTH PRIVATE LTD .....
Appellant
Through: Mr. S.K. Bansal, Mr. Ajay Amitabh
Suman and
Mr. Anil Kumar Sahu,
Advocates
versus
GIANI RAM
MITTAL & ORS
Through:
.....
Respondents
Mr. Ashok Mittal, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
O R D E R
% 10.04.2015
C.M. Appl. 6351/2015
Allowed,
subject to just exceptions.
C.M. Appl. 6350/2015
The Trial Court record be requisitioned through a special messenger before
the next date of hearing. Application is disposed of.
FAO 103/2015 and C.M. Appl.
6349/2015
1.
Issue notice. Learned counsel for the respondents
accepts notice.
2.
Learned counsel for the appellant
submits that the respondents have copied the trade-dress and colour scheme of
the appellant’s wrapper in respect of the dish wash bar. The appellant’s
wrappers have been placed on record as Annexure A-2 from pages 46 to 49. The
respondents’ wrappers have been placed on record as Annexure A-2 from pages 50
to 52.
3.
Learned counsel for the
respondents submits that the respondents adopted this trade-dress and colour
scheme in the year 2009-2010. Learned
counsel for the respondents further submits that
the respondents are the prior user of the trade-dress and colour scheme and,
therefore, the appellant is not entitled to injunction.
4.
Learned counsel for the appellant
submits that the statement made by the respondents before this Court today is
not part of the pleadings before the Trial Court. Learned counsel for the
appellant further points out that the appellant is aggrieved by the respondents
copying the trade-dress and colour scheme but the appellant has no objection to
the respondents’ name “Sagar Excellent” which is no doubt different from the
appellant’s trademark ‘Expert’.
5.
The respondents’ written
statement has been placed on record as Annexure A-9 at page 124 in which
learned counsel for the respondents could not show the defence taken that
trade-dress and the colour scheme was adopted by the respondents in 1999-2010.
6.
Learned counsel for the
respondents submits that the respondents shall appear before this Court on the
next date of hearing along with all relevant documents to show the adoption of
the trade-dress and colour scheme by the respondents in 1999-2010.
7.
List on 13th April,
2015 at 02:30 p.m.
8.
Both the parties shall remain
present in Court on the next date of hearing along with all original documents
relating to the adoption of the trade-dress and colour scheme by them. Till the
next date of hearing the respondents are restrained from using the colour
scheme and trade-dress of the appellant.
9.
Copy of this order be given dasti to counsels for the parties under
signatures of the Court Master.
J.R. MIDHA, J.
APRIL 10, 2015/rsk
$~2
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
FAO 103/2015 and C.M. Appl. 6349/2015
M/S RSPL HEALTH PRIVATE LTD ..... Appellant Through: Mr. Amit
Sibal, Senior Advocate with Mr. S.K. Bansal, Mr. Ajay Amitabh Suman, Mr. Anil
Kr. Sahu, Mr. Amit Chander Jha and Mr. Santosh Kumar, Advocates
versus
GIANI RAM
MITTAL & ORS
Through:
.....
Respondents
Mr. Ashok Mittal, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
O R D E R
% 24.04.2015
1.
Mr. Kailash Chand Mittal, partner
of M/s Mittal Industrial Corporation, is present in Court along with his
counsel and this Court considers it necessary to examine him on oath under
Section 165 of the Indian Evidence Act.
2.
The statement has been recorded
separately under Section 165 of the Indian Evidence Act and this Court is
satisfied that Mr. Mittal has made false claim under Section 209 of the Indian
Penal Code, which is reproduced hereunder: -
“Section 209.
Dishonestly making false
claim in Court.—
Whoever
fraudulently or dishonestly, or with intent to injure or annoy any person,
makes in a Court of Justice any claim which he knows to be false, shall be
punished with imprisonment of either description for a term which may extend to
two years, and shall also be liable to fine.”
3.
At this stage, learned counsel
for the respondents, on instructions from Mr. Kailash Chand Mittal, present in
Court, submits that the respondents shall forthwith stop using the trade dress
and colour scheme of Ex.C-1 and, therefore, the appeal may be allowed and the
injunction order be passed against the respondents.
4.
In view of the statement made by
learned counsel for the respondents with the consent of partner of respondent
No.3, Mr. Kailash Chand Mittal, present in Court, the appeal as well as C.M.
Appl. 6349/2015 are allowed, impugned order dated 25th February, 2015 is set aside and
the appellant’s application under Order 39 Rules 1 and 2 of the Code of Civil
Procedure filed before the Trial Court is allowed in terms of the prayers made
therein (at pages 119 to 121).
5.
Copy of this order be given dasti to counsels for the parties under
signatures of the Court Master.
J.R. MIDHA, J.
APRIL 24, 2015
rsk
S U P R E M E C O U R T O F
RECORD OF
PROCEEDINGS
I N D I A
Petition(s)
for Special Leave to Appeal (C)
No(s).
25021/2015
(Arising out of impugned final judgment and order
dated 24/04/2015 in FAO No. 103/2015 passed by the High Court Of Delhi At New
Delhi)
GIANI RAM
MITTAL & ORS.
Petitioner(s)
VERSUS
M/S. RSPL
HEALTH PRIVATE LIMITED
Respondent(s)
Date : 14/09/2015 This petition was called on for
hearing today.
CORAM :
HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s)
Arunima Dwivedi,Adv.
Mr. Ashok Mittal, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the
following
O R D E R
Learned
counsel for the petitioners submits that he had given the statement in the High
Court under the threat of
adverse consequences. He has produced before us the
trade mark "Xpert" of the respondent and submits that it nowhere
resembles or is confusingly similar to the trade mark "Sagar
Excellent". In support of the submission he has produced both the trade
marks for comparison.
Issue notice.
There shall be stay of the impugned judgment and
Signature Not
Verified
Digitally
signed by Vinod Kumar Date: 2015.09.14 17:14:48 IST Reason:
order during the pendency of the
petition.
(VINOD KR.
JHA)
COURT MASTER
(RENU DIWAN)
COURT MASTER
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.700 OF 2016
(Arising out of SLP(C)No.25021/2015)
GIANI RAM MITTAL & ORS. ...
APPELLANT(S)
VS.
M/S. RSPL HEALTH PRIVATE LIMITED ...
RESPONDENT(S)
J U D G M E N T
ANIL R. DAVE, J.
1.
Leave
granted.
2.
Heard the
learned counsel and perused the wrappers of both the products.
3.
|
Looking
|
at
|
the
|
peculiar
|
facts
|
of
|
the
|
case,
|
the
|
|||
impugned
|
order is
|
set aside and the
|
matter is remitted
|
to
|
||||||||
the High
|
Court, so that it can be heard
|
afresh.
|
The
|
|||||||||
matter
|
shall be taken up for hearing on
|
8 th February,
|
2016
|
|||||||||
by
|
the
|
High Court.
|
||||||||||
4.
We are sure
that the parties shall be heard afresh and an appropriate order shall be passed
after hearing the counsel for the parties.
Signature
Not Verified
Digitally
signed by
Sarita
Purohit
Date:
2016.02.01
16:45:55 IST
Reason:
1
5.
The appeal
stands allowed with no order as to costs. Pending application, if any, is also
disposed of.
6.
Intimation of
this order be sent to the High Court forthwith.
..............J.
.................J.
[SHIVA KIRTI SINGH]
.................J.
[ADARSH KUMAR GOEL]
New Delhi;
1st February,
2016.
2
OUT-TODAY
ITEM NO.4 COURT NO.2 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s)
for Special Leave to Appeal (C) No(s).25021/2015
(Arising
out of impugned final judgment and order dated 24/04/2015 in FAO No.103/2015
passed by the High Court Of Delhi At New Delhi)
GIANI RAM MITTAL & ORS. Petitioner(s)
VERSUS
M/S. RSPL HEALTH PRIVATE LIMITED Respondent(s)
(With interim
relief and office report)
Date
: 01/02/2016 This petition was called on for hearing today.
CORAM
:
HON’BLE MR. JUSTICE ANIL R. DAVE
HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
HON’BLE MR. JUSTICE ADARSH KUMAR GOEL
For Petitioner(s)
|
Mr. Ashok Mittal,Adv.
|
||
Ms. Arunima
|
Dwivedi,Adv.
|
||
For Respondent(s)
|
Mr.
|
Amit
|
Sibal,Sr.Adv.
|
Mr.
|
S.K.
|
Bansal,Adv.
|
|
Mr.
|
Ajay
|
Amitabh Suman,Adv.
|
|
Mr.
|
Anil
|
Kumar Sahu,Adv.
|
|
Mr.
|
S. Rayeen,Adv.
|
||
For
|
Mr. Rakesh Kumar,Adv.
|
||
UPON hearing the counsel the Court made the
following
O R D E R
Leave granted.
The appeal is allowed with no order as to costs in
terms of signed Non-reportable judgment.
(Sarita Purohit) (Sneh Bala
Mehra)
Court Master Assistant
Registrar
(Signed
Non-reportable judgment is placed on the file)
