RESEARCH IN MOTION LIMITED VS DATA INFOSYS LIMITED

IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 373/2011
% Judgment dated 12.01.2012 RESEARCH IN MOTION LIMITED ..... Plaintiff Through : Mr. Sanjay Jain, Sr. Adv. with Ms.Charu
Mehta, Ms. Deepali and Ms. Prabsahay
Kaur, Advs.
versus
DATA INFOSYS LIMITED ..... Defendant Through : Mr. S.K. Bansal, Mr. Ajay Amitabh Suman and Mr.Keshav Ch. Thakur, Advs.
for defendants no.2 to 4.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
I.A.NO.6112/2011
1. Plaintiff has filed the present suit for injunction against infringement of copyright, infringement of trade mark, passing off, breach of contract, delivery up, damages and rendition of accounts. Along with the plaint, plaintiff has filed I.A.2476/2011 under Order XXXIX Rules 1 and 2 CPC for grant of ex parte ad interim injunction.
2. While issuing summons in the suit and notice in the application on 18.2.2011, this Court had passed an interim order, by which the only defendant, M/s Data Infosys Limited, was restrained from using, copying, reproducing and/or distributing any software application developed by using the SDK or BES software of the plaintiff till the next date of hearing. Defendant was also restrained from using the mark „Berry‟ as a part of its trademark or trade name or any other name similar to the plaintiff‟s trademark BlackBerry till the next date of hearing. Relevant portion of the order dated 18.2.2011 reads as under:
CS(OS) 373/2011 Page 1 of 25 "I.A.No.2477/2011
1. Allowed, subject to the plaintiff filing all the original documents relating to this case within its power and possession within 10 days.
2. The application stands disposed of.
CS(OS) 373/2011 and I.A.No.2476/2011
1. Issue summons in the suit and notice in application to the defendant by ordinary process, registered AD post as well as dasti, returnable on 24th May, 2011.
2. The plaintiff is a corporation incorporated under the laws of Canada. The plaintiff was founded in the year 1984 and claims to be the first wireless data technology developers in the world. The plaintiff is manufacturing and marketing wireless solutions for the mobile communications in the name of BlackBerry. The trademark BlackBerry was adopted by the plaintiff in the year 1999 and its wireless solution allows the users to stay connected with the wireless access to e-mails, corporate data, phone, web and organizer features. The plaintiff has incurred huge amount on research and development. The figures in this regard are given in para 10 of the plaint. The plaintiff also owns the copyright in the code, specifications, documentation and other materials in respect of BlackBerry Enterprise Server (BES) Software and Software Development Kit (SDK). The plaintiff‟s trademark BlackBerry is registered in Classes 9, 38 and 41. The registration numbers of the nine registrations of the plaintiff are given in para 16 of the plaint. The annual revenues of the plaintiff are given in para 17 of the plaint. The plaintiff is also owning various websites with the trademark BlackBerry forming part of its website. The plaintiff claims to have 55 million subscribers who are using the BlackBerry products and the services of the plaintiff throughout the world. As per the particulars given in para 23 of the application, the plaintiff claims the trademark BlackBerry to be well known within the meaning of Section 2(1)(zg) of the Trade Marks Act, 1999.
3. From the newspaper report dated 4th October, 2010 in the Hindustan Times, the plaintiff came to know that the defendant is offering BharatBerry services and software application whereupon the plaintiff investigated the matter and discovered the website
CS(OS) 373/2011 Page 2 of 25 www.bharatberry.com owned and managed by the defendant. The defendant is offering BharatBerry software which has all the features of the plaintiff‟s software. On further inquires, the plaintiff found that an employee/representative of the defendant, Mr. Nitin Walia had downloaded the plaintiff‟s proprietary SDK from the plaintiff‟s website on or before 28th September, 2010. By downloading the SDK, the defendant agreed to abide by the terms of the SDK licence agreement which explicitly prohibits the unauthorized use of the software. However, in violation of the terms of the SDK licence, the defendant developed, marketed and advertised the plaintiff‟s software under the name of BharatBerry by replicating the plaintiff‟s software.
4. According to the plaintiff, the defendant has infringed the plaintiff‟s copyright in the SDK software by unauthorizedly using the application without plaintiff‟s approval. Learned Senior Counsel for the plaintiff further submits that the defendant is using the name BharatBerry with both the „B‟ in capital like in BlackBerry and is also passing its services as that of the plaintiff. The defendant has also violated the terms of SDK licence and BBSLA by offering hosted BES services to their parties.
5. The plaintiff has made out a prima facie case for grant of ex- parte ad-interim injunction and this court is satisfied that unless the ex-parte ad-interim injunction is not granted, the plaintiff would suffer irreparably and the balance of convenience is also in favour of the plaintiff.
6. In the facts and circumstances of this case, the defendant is restrained from using, copying, reproducing and/or distributing any software application developed by using the SDK or BES software of the plaintiff till the next date of hearing. The defendant is also restrained from using the mark „Berry‟ as a part of its trademark or trade name or any other name similar to the plaintiff‟s trademark BlackBerry till the next date of hearing.
7. Order XXXIX Rule 3 of the Code of Civil Procedure be complied within two weeks.
8. The application is disposed of.
CS(OS) 373/2011 Page 3 of 25
3. In the application filed under Order XXVI Rule 9 CPC, on the same day, this Court while appointing two Local Commissioners to visit the premises of defendant at (i) Registered office Inside Jaipur Glass Factory, Tonk Road, Jaipur - 302018, Rajasthan; and (ii) Head Office at Station Road, Durgapura, Jaipur - 302018, Rajasthan, had issued following directions to the Local Commissioners:
(ii) The Local Commissioners shall prepare an inventory of the impugned software, packaging, advertising and other material on the aforesaid premises bearing trademark "BharatBerry" and/or "BlackBerry" or any deceptive variations thereof and after taking into custody, hand over the seized material on supardari to the defendant, after obtaining an undertaking that the defendant shall produce the same as and when required by this Court. The Local Commissioner shall also inspect the contents of Central Processing Units (CPUs), Compact or Floppy discs and/or any other storage media for the purposes of identification of the software in question and thereafter prepare mirror images or copies of the hard disc(s) containing such impugned software and seal the same in suitable packing material or container and deposit the same before this Court. The Local Commissioner shall also inspect and sign the books of accounts including cash books, purchase and sale records of the defendant which pertain to manufacture and sale of the infringing products.
(iii) The Local Commissioners shall take the assistance of the technical expert to be appointed by the plaintiff for the purpose of identification of the software and for preparing mirror images and copies of the hard disc(s) containing the software.
(iv) Two representatives of the plaintiffs are permitted to accompany the Local Commissioners to assist the
Local Commissioners for execution of the Commissions proceedings.
(v) The Local Commissioners shall visit the defendant‟s premises without giving prior notice to the defendants.
CS(OS) 373/2011 Page 4 of 25 (vi) The fee of the Local Commissioners is fixed at Rs.70,000/- each apart from travel, transport and out of pocket expenses. The Commission shall file their reports within three weeks.
4. Mr. Sanjay Jain, learned senior counsel for the plaintiff, submits that necessity for filing I.A.No.6114/2011 under Order I Rule 10(2) and Order VI Rule 17 CPC for impleading Bharat Berry Technologies Private Limited as defendant no.2, Mr. Ajay Data as defendant no.3 and Mr.Nitin Walia as defendant no.4, and I.A.NO.6112/2011, under Section 94(E) and Order XXXIX Rules 1 and 2 CPC praying that interim order granted by this Court on 18.2.2011 be extended against defendant‟s no.1 Directors, namely, Mr. Ajay Data, and Mr.Nitin Walia, and its sister concern/affiliate company Bharat Berry Technologies Private Limited, has arisen on account of the fact that defendants no.2-4 are closely connected with defendant no.1, Data Infosys Limited, against which the interim order dated 18.2.2011 was passed. Defendants no.2-4 initially were not made parties to the suit and taking advantage of this fact defendants no.2-4 are not only flouting and disobeying the order passed by this Court on 18.2.2011 but they have also filed a suit under Section 142 of the Trademarks Act against the plaintiff herein to gain unfair advantage and to over reach the order of this Court.
5. On 9.5.2011 while allowing I.A.NO.6114/2011 this Court had impleaded defendants no.2 to 4 as parties to the present suit and also passed an Order in I.A.No. I.A.NO.6112/2011 by which the interim order 18.2.2011 with regard to the software was extended to defendants no.2-4. Para 5 of the order dated 9.5.2011 passed in I.A.NO.6112/2011 reads as under: "5. The learned counsel for defendants No.2 to 4 is not able to explain his stand with respect to „SDK‟ and „BES‟. In that view of the matter, the interim order dated 18th February, 2011 relating to
CS(OS) 373/2011 Page 5 of 25 software „SDK‟ and „BES‟ is extended to defendants no.2 to 4. The extension of the order dated 18th February, 2011 relating to the use of BharatBerry by defendants No.2 to 4 shall be considered on the next date of hearing."
6. Learned senior counsel for the plaintiff submits that interim order dated 18.2.2011 with regard to use of the word BERRY be extended to defendants no.2-4 as well as all the defendants are closely connected with each other.
7. Mr. Jain further submits that after the interim order was passed, as directed by this Court, the Local Commissioners visited the Head Office of defendant no.1 company situated at Station Road, Durgapura, Jaipur - 302018, Rajasthan. The Local Commissioner met Mr.Ajay Data and Mr.Nitin Walia, CEO of defendant no.1 company. The senior counsel has highlighted the relevant portion of the report of the Local Commissioner wherein it has been observed as under:
(i) Ms. Charu Mehta (Counsel for the plaintiff) handed over a copy of the Court Orders along with a copy of the petition including the documents to the defendant (through Mr.Ajay Data) (paragraph 2);
(ii) Mr.Nitin Walia, Director of the company was also present there (paragraph 4);
(iii) The mark „bharat berry‟ (written in black in bold letters, bearing space between the two words, with strips representing the tricolor), appeared on the glass door(s) on entrance and the glass door(s) on further cabins (paragraph 15);
(iv) Mr.Nitin Walia stated that, as on date, the mark „bharat berry‟ has been used since October 2010 (paragraph 16);
(v) Mr.Walia states that the trade mark "Bharatberry" is being used on the website www.bharatberry.com
(paragraph 14)"
8. It is submitted that, during the execution of the Commission at the head
CS(OS) 373/2011 Page 6 of 25 office of the Respondent company (Station Road, Durgapura, Jaipur 302019, Rajasthan), the plaintiff‟s representative and the Local Commissioner, Mr.Vibhav Misra, met Mr.Ajay Data and Mr.Nitin Walia, CEO/directors/responsible officers of the defendant no.1 company. The Local Commissioner, Mr. Vibhav Misra, duly served the defendant no.1, through Mr.Ajay Data and Mr.Nitin Walia, with a copy of the Order and paperbook and such fact of service is recorded by the Local Commissioner in his report filed with this Hon‟ble Court.
9. Learned senior counsel for the plaintiff submits that plaintiff thereafter learnt that on 3.3.2011 a company known as BharatBerry Technologies Private Limited (BBTPL) filed a Civil Suit No.32/2011, inter alia, against the plaintiff and its subsidiary, Research in Motion India Private Limited, which was listed for hearing before the Court of Additional District Judge No.VII, Jaipur, Metro Jaipur. The suit filed at Jaipur did not disclose the factum of the present suit filed by the plaintiff in this Court and the order dated 18.2.2011 passed by this Court by which defendant no.1, inter alia, was restrained from using the word „Berry‟ as part of trademark/trade name of defendant no.1. BBTPL alleged in its suit filed at Jaipur that the plaintiff had issued threats to them on 2.3.2011 not to use the trademark/name BharatBerry of the plaintiff. On 3.3.2011 the Court at Jaipur issued notice to the plaintiff and its subsidiary for the very next day i.e. 4.3.2011 and fixed the matter for hearing at 12.00 Noon. The learned Court at Jaipur, it is alleged, ignored the fact that the plaintiff is having its office at Canada and its subsidiary is located at New Delhi and thus one day notice is no notice in the eyes of law. Besides there was no merit in the suit, which had been filed, and the object of filing the said suit at Jaipur was to defeat the injunction order granted by this Court on 18.2.2011.
CS(OS) 373/2011 Page 7 of 25
10. Learned senior counsel for the plaintiff submits that since the contesting defendants (plaintiff herein) did not appear on the next date of hearing i.e. 4.3.2011 before the Court at Jaipur, as they were not served, the learned Additional District Judge at Jaipur passed an ex parte injunction order, inter alia, restraining plaintiff and its subsidiary from allegedly interfering, causing impediments/obstructions or groundlessly threatening whether directly or indirectly vis-à-vis the business affairs of BBTPL in carrying on or continuing business in the name and style of „BharatBerry‟. As advised, plaintiff filed a writ petition, challenging the said order before the High Court at Rajasthan, which was disposed of in view of availability of the alternative remedy of appeal.
Upon receipt of the interim order from the Court at Jaipur, plaintiff started conducting enquiries with respect to BBTPL. Upon reading of the plaint, which was filed at Jaipur, plaintiff noticed that BBTPL had made numerous baseless allegations against the plaintiff and its subsidiary including that the plaintiff had visited the premises of BBTPL on 2.3.2011 and threatened BBTPL. Counsel further submits that the averment made by defendants no.2-4 in Para 10 of the plaint filed at Jaipur is a blatantly false statement as the Local Commissioners did not visit the premises of BBTPL, which is evident from the report of the Local Commissioner. Counsel next submits that in fact the plaintiff only visited the office of defendant no.1 and plaintiff was not even aware of the existence of BBTPL till that point of time. Upon further enquiries made by the plaintiff, plaintiff learnt from the records of the Registrar of Companies that BBTPL was incorporated on 21.12.2010 and is closely connected with defendant no.1, which had been injuncted by this Court from using the impugned trademark, namely, BHARATBERRY. Senior counsel for the plaintiff contends that plaintiff also learnt that Mr.Ajay Data and
CS(OS) 373/2011 Page 8 of 25 Mr.Nitin Walia are Directors/CEO/responsible officers/promoters of BBTPL and defendant no.1.
11. Elaborating his arguments further to show that defendant no.1 and Bharat Berry Technologies Private Limited are closely connected and they have common Directors/CEO/responsible officers/promoters, Mr. Jain submits that enquiries were made into the affairs of BBTPL, which reveal from the record of the Registrar of Companies that BBTPL was incorporated on 21.12.2010 and is closely connected with defendant no.1, which has been injuncted by this Court from using the impugned trade mark/name BharatBerry. Plaintiff also learnt that Mr.Ajay Data and Mr.Nitin Walia are Directors/CEO/responsible officers of BBTPL and defendant no.1. and in fact on account of the closeness of the two companies defendant no.1 had issued a no objection certificate to the Registrar of Companies stating that "With reference to the cited subject, our Company DATA INFOSYS LIMITED having its registered office at Inside Jaipur Glass Factory, Tonk Road, Jaipur (Rajasthan) hereby convey its „No Objection‟ for registration of the new Company Using the word "BHARAT BERRY". Original print out from the records of the Registrar of Companies of „No Objection Certificate‟ issued by defendant no.1 has been filed as a document vide List of Documents dated 19.4.2011. Senior counsel also contends that the certificate issued by Data Infosys Limited would show a close connection between Data Infosys Limited and BBTPL otherwise there would be no occasion for one company to allow another company the use of its name. It has further been argued by learned senior counsel for the plaintiff that the two companies belong to the same person, who are acting in connivance with each other, and both - Mr.Ajay Data and Mr.Nitin Walia - were present at the premises of defendant no.1 during the execution of the Commission by the Local Commissioners; they were
CS(OS) 373/2011 Page 9 of 25 handed over a copy of the order passed by this Court on 18.2.2011; and they were aware that the use of the word BharatBerry had been injuncted by this Court by an order dated 18.2.2011.
12. Learned senior counsel for the plaintiff has drawn the attention of the Court to the fact that the website prior to the order dated 18.2.2011 passed by this Court showed "website designed and managed by Team Date Infosys Limited" and the same website now states "website designed and managed by Bharat Berry Technologies Pvt. Ltd.". Senior counsel further submits that the domain name www.bharatberry.com is owned and controlled by defendant no.1, which would show a direct nexus between defendant no.1, BBTPL, Mr.Ajay Data and Mr.Nitin Walia. It would further show that Mr.Ajay Data and Mr.Nitin Walia are the main persons behind all the activities of defendant no.1 and BBTPL. It is also submitted that BBTPL and defendants are closely related companies having common Directors/Officers and both - Mr.Ajay Data and Mr.Nitin Walia - under the garb of the new company BBTPL are violating the order dated 18.2.2011 passed by this Court.
13. Learned senior counsel for the plaintiff further submits that statement of Mr.Rakesh Mamnani, who was working as Legal Officer with Data Infosys Limited since March, 2009, was recorded in Court on 21.4.2011. In the said statement it has been deposed by Mr.Rakesh Mamnani, inter alia, that Mr. Nitin Walia is the Director of Data Infosys Limited, the office of BharatBerry Technologies Private Limited is situated at D-47, Laxaman Marg, Hanuman Nagar, Vaishali Nagar, Jaipur. Mr. Ajay Data, Mr. Deepak Data and Mr.Nitin Walia are the Directors of BharatBerry Technologies Pvt. Ltd. and he was also looking after the affairs of BharatBerry Technologies Private Limited. Mr.Rakesh Mamnani further deposed that the suit at Jaipur was instituted under his signatures and he
CS(OS) 373/2011 Page 10 of 25 had signed and verified the plaint, whereas Mr.Nitin Walia had signed and verified the written statement in the present suit. The Legal Officer of Data Infosys Limited further stated that the Board of Directors of BBTPL took the decision to file a case at Jaipur in the meeting of the Board of Directors held on 3.3.2011 at 10:00 o‟clock, when he was present. He also deposed that he was aware on 3.3.2011 when the Board meeting took place that an injunction order had been passed by this Court and the Local Commissioners had conducted their proceedings on 2.3.2011. Mr. Jain contends that the statement of Sh.Rakesh Mamnani further leaves n o room for doubt about the fact that both Mr.Ajay Data and Mr.Nitin Walia are running defendant no.1 and defendant no.4.
14. Learned senior counsel for the plaintiff contends that with a view to continue their illegal activities and circumvent the order dated 18.2.2011 passed by this Court, defendant no.1 simply shifted the impugned operations of their company, Data Infosys Limited, to be run under BBTPL, which was a newly formed company, completely under their control and share holding. Despite, being aware of the pendency of the civil suit and the injunction order having been passed by this Court, Mr.Ajay Data and Mr. Nitin Walia, as share holders and/or Directors of BBTPL, initiated and filed a false civil suit before the Court of Additional District Judge, Jaipur, by willfully suppressing the order dated 18.2.2011 on the false pretext of receiving threats from the plaintiff. Counsel further contends that Mr.Ajay Data and Mr.Nitin Walia would have come to know about the injunction order only from the Local Commissioners only a day before filing the suit at Jaipur, as the plaintiff had made no direct or indirect contact with them, nor the plaintiff was aware of the new company BBTPL. Counsel next contends that defendant no.1 is continuing to commit breach of the order dated 18.2.2011 in connivance
CS(OS) 373/2011 Page 11 of 25 with defendants no.2-4 by running its website www.bharatberry.com, which was de-activated upon receipt of the order dated 18.2.2011 and all references to defendant no.1 stands replaced with BBTPL.
15. On the merits, Mr.Jain submits that the plaintiff is a corporation incorporated under the laws of Canada. The plaintiff was founded in the year 1984 and claims to be the first wireless data technology developers in the world. The plaintiff is manufacturing and marketing wireless solutions for the mobile communications in the name of BlackBerry. The trademark BlackBerry was adopted by the plaintiff in the year 1999.
16. Counsel for the plaintiff also submits that large sums of money is spent in maintaining and protecting the fruits of its labour and efforts in the form of intellectual property the world over. The plaintiff‟s intellectual properties and technologies are statutorily protected around the world including by way of trade mark, copyright, patent and design protection. The plaintiff‟s proprietary (i) BES software primarily designed to integrate and synchronize email servers with BlackBerry smartphones and (ii) software development tools made available in the form of the SDK, comprising the source code and object code used to program and compile applications for BlackBerry smartphones, qualify for protection as „original literary works‟ as contemplated under Section 2(o) and Section 13 of the Copyright Act, 1957 and enjoy copyright protection. Such software is made available to consumers and developers either along with the smartphone or on a standalone basis under the terms of various user licences. Before one can use this software, one has to accept the terms of the respective licence agreements and abide by such terms. The plaintiff owns copyright in the code, specifications, documentation and other materials that comprise the BES software and SDK. Both India and Canada are signatories to the Berne Convention and thus works first
CS(OS) 373/2011 Page 12 of 25 published in Canada are entitled to protection in India as well. Such protection is available under Section 40 of the Copyright Act and by virtue of the International Copyright Order passed by the Indian Government, whereunder the works first published in the convention countries mentioned in the Schedule to the Copyright order are protected and all the provisions of the Copyright Act, except in Chapter VIII relating to the rights of broadcasting organizations and of all performers, apply to any work first made or published in such countries in like manner as if the work was first published in India. Therefore, all the software products of the plaintiff are entitled to protection in India as literary works and the plaintiff is entitled to take action for infringement of its copyright in such literary works and obtain relief from the Court as provided under the Copyright Act. The plaintiff owns a global portfolio of Blackberry and BlackBerry formative trade marks including the trade mark BlackBerry. The plaintiff has secured more than 2000 registrations of BlackBerry and BlackBerry formative marks in 160 jurisdiction around the world. Copies of a selection of relevant registration certificates obtained in various countries around the world including the commonwealth countries have been filed along with the Plaint.
17. It is also contended that with respect to India, the plaintiff has obtained the registration of BlackBerry and plaintiff has made its trademark in various classes, the example of which have been set out in the plaint. The strong global sales for its products and the extent and use and popularity of the plaintiff‟s BlackBerry trademark, is evident from the fact that there are more than 55 million subscribers using the BlackBerry products and services of the plaintiff throughout the world.
18. Mr.Jain, learned senior counsel for the plaintiff has drawn the attention of the court to the plaintiff‟s revenue recorded in US$, which are reproduced
CS(OS) 373/2011 Page 13 of 25 as under:
a. $ 1 billion for the fiscal year 2005
b. $ 2 billion for the fiscal year 2006
c. $ 3 billion for the fiscal year 2007
d. $ 6 billion for the fiscal year 2008
e. $ 11 billion for the fiscal year 2009
f. $ 15 billion for the fiscal year 2010"
19. Mr.Jain also contends that plaintiff has a significant presence in Indian market and its products under the trademark BlackBerry are extensively available in the Indian market especially through relationships with Bharti Tele- Services Limited (which operates under its trade mark "AIRTEL"), Vodafone (India), Aircel, BSNL, Idea Cellular and various other operators.
20. Counsel for the plaintiff submits that while granting interim ex parte injunction this court had considered the above factors and the submissions made by counsel for the plaintiff. Mr.Jain has strongly urged before this court that having regard to the facts of this case and having regard to the conduct of the defendants No.2 to 4, the interim order granted on 18.02.2011 should be extended so that the defendants No.2 to 4 cannot take advantage of their own wrongs in frustrating the order passed by this court. It is further urged before this court that even prior to a detailed hearing in the application under Order 39 Rules 1 and 2 and the application under Order 39 Rule 4 CPC, the interim order should be extended to defendants No.2 to 4, failing which a wrong signal would be sent to such litigants, who by adopting sharp practices want to over-reach orders of the court.
21. Mr.S.K. Bansal, counsel for defendants has primarily raised three objections with regard to extending interim order to defendants No.2 to 4. Firstly Mr.Bansal contends that the plaintiff has not approached this court
CS(OS) 373/2011 Page 14 of 25 with clean hands, as the plaintiff has suppressed and withheld material facts. The plaintiff has wilfully suppressed the disclaimer on the registration certificate with regard to the word „Berry‟. It is contended that on this ground alone the suit should be dismissed and the interim order dated 18.02.2011 should be vacated. Secondly, the plaintiff has failed to comply with a direction of this court by which the parties were called upon to file copies of their software on record. Mr.Bansal, counsel for defendants submits that while the defendants have complied with the order, plaintiff has not filed the software till date. The third objection raised by Mr.Bansal, counsel for the defendants is that there are large number of persons in the market, who are using the suffix „Berry‟ and thus the plaintiff cannot have any monopoly on the said work „Berry‟.
22. Elaborating his first argument Mr.Bansal submits that plaintiff has failed to state in the plaint that the registration of the plaintiff with regard to the word BlackBerry was with a disclaimer. This is a material fact which has been suppressed in the plaint and during the course of hearing of the interim application. In support of this submission counsel for the defendants has placed strong reliance in the case of Om Prakash Gupta v. Parveen Kumar and Anr., reported at 2000 PTC 326, wherein a Single Judge has considered various judgments and held that concealment of material facts or documents, making any misrepresentation in court, has been seriously viewed by the Court. Relevant portion of the judgment at pages 333-334, are reproduced below:
"As seen above, the trademark was registered subject to disclaimer that this registration shall give no right to the exclusive use of the device of 'Sun' and the word "SURAJ". This means that the word "SURAJ" and the device of Sun do not form part of the registered trademark. And the registered trademark is only "Zafrani Patti".
CS(OS) 373/2011 Page 15 of 25
17. Section 17 of the Act reads as under :
"17. Registration of trade marks subject to disclaimer.--
(a) contains any part --
(i) which is not the subject of a separate application the proprietor for registration as a trade mark; or
(ii) which is not separately registered by the proprietor was a trade mark; or
(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character;
the Tribunal, in deciding whether the trade mark shall be entered or shall remain, on the register, may require, as a condition of its being on the register, that the proprietor shall either disclaim any right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the Tribunal holds him not to be entitled, or make such other disclaimer as the Tribunal may consider necessary for the purpose of defining the rights of the proprietor under the registration :
Provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made."
Similar provision existed in Section 13 of the earlier Trade Marks Act, 1940. The object and purpose for imposing disclaimer has been explained by the Supreme Court in the case of Registrar of Trade Marks v. Ashok Chandra Rakhit AIR 1955 SC 558 as under:
"8. The real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, possibility of extravagant and unauthorised claims being made on the score of registration of the trade marks."
Disclaimed part(s)/matter of the registered trademark does not form part of the registered trademark and as such is not entitled to the benefits available in respect of a registered trademark."
CS(OS) 373/2011 Page 16 of 25
23. Elaborating upon the second submission Mr.Bansal contends that large number of persons in the market are using the suffix BERRY including Burberry, which has a registration under Clause 9 for the use of mobile case as well. Mr.Bansal, counsel for the defendants has drawn attention of the court to the search report conducted by him in this regard to show the various names with the suffix BERRY.
24. Mr.Bansal further contends that a mere glance of the getup of the two marks would show that there is absolutely no similarity and the writing style is completely distinct and different and no person can be mislead. Counsel has relied upon Hindustan Sanitaryware & Industries Litd. v. Champion Ceramic, reported at 2010 (45) PTC 260 (Del.) and J.K. Oil Industries v. Adani Wilmar Limited, reported at 2010 (42) PTC 639 (Del.).
25. In response to the submissions made by Mr.Bansal, counsel for the defendant, Mr.Sanjay Jain, learned senior counsel for the plaintiff, submits that the allegation of suppression are baseless and unfounded as the plaintiff has filed copies of all the registration certificates in favour of the plaintiff and only in one registration certificate there is a disclaimer with regard to the word „Berry‟ and thus it cannot be said that the plaintiff has intentionally and willfully suppressed the disclaimer from this court. It is further submitted that having regard to the fact that there is disclaimer only in one registration the defendant cannot derive any benefit.
26. While relying on the judgment in the case reported in the case of Cadbury India Limited and Ors. v. Neeraj Good Products reported at 142 (2007) DLT 724, Mr.Jain, learned senior counsel for the plaintiff submits that the injunction order can be passed on the basis of the registration certificate in which there is no disclaimer. Para 68 of the judgment reads as under:
CS(OS) 373/2011 Page 17 of 25 "68. There is no dispute that the registration of the plaintiff which have been granted to the plaintiff bearing No. 249360 on 20th May, 1968 in Class 30 for CADBURY MILK
CHOCOLATES GEMS '(Word)' contained the disclaimer on the exclusive right to use 'GEMS'. On the registration bearing No. 249841, there is an additional disclaimer regarding the use the device of tablets. However, it is undisputed that the plaintiff No. 1 has a registration dated 21st September, 1973 in respect of 'CADBURY's GEMS' Label bearing No.
291026 in Class 30 on which there is no such disclaimer. I find force in the submissions of the plaintiff that by this registration alone, the plaintiff is entitled to maintain an action for infringement of trademark against the defendant if it establishes that the defendant is dishonestly using a mark which is similar to the plaintiff's registered mark."
27. As far as the submissions made by counsel for the defendants with regard to non-filing of the software is concerned, Mr.Jain submits that the software was sent to the expert for its opinion and only for this reason there has been delay in filing copies of the software. With regard to the third submission made by Mr.Bansal, Mr.Jain, counsel for the plaintiff submits that placing reliance on the search report can be of no aid, help and assistance to the defendants, as almost all the registrations do not pertain to mobile phones except Burberry which primarily deals with accessories and not with respect to the mobilephones. Mr.Jain also submits that with respect to the other users, the products and services are different and there is no phonetic and any other similarity in the mark as in the present case.
28. I have heard learned senior counsel for the plaintiff and also learned counsel for the defendant. Ordinarily the submission made by learned counsel for the defendant that all pending applications including the application filed by defendants under Order XXXIX Rule 4 CPC should be heard and disposed of by a composite order would no doubt be the
CS(OS) 373/2011 Page 18 of 25 correct manner of dealing with this application. But the facts of this case and the manner in which the newly added defendants no.2 to 4 have successfully defeated the interim order passed by this Court on 18.2.2011 till date requires I.A.No.6112/2011 to be heard and taken up at the very first opportunity available and on account of paucity of time it is not possible to take up all the applications today and having regard to the conduct of defendants no.2-4 and to meet the ends of justice I deem it appropriate to take up I.A.No.6112/2011.
29. This matter had come up for hearing before this Court on 14.12.2011. Learned counsel for the plaintiff had pressed hearing of this application but in view of the fact that the suit filed by defendants no.2 to 4 was pending in the Court at Jaipur, this court was not inclined to hear the matter. At that stage, Mr. Jain had pointed out that plaintiff had visited Jaipur at least 15 dates to bring to the notice of the Court that the present suit had been filed earlier in point of time and also the fact that Directors of defendant no.1 and defendant no.2 were common and in fact one and the same persons. On account of the conduct of defendants no.2 to 4 the matter could not attain finality, however, having regard to the judicial discipline, this Court adjourned the matter to 10.1.2012. As a word of caution the Court observed that the submissions made by Mr. Jain would be considered on the next date even if the final order was not passed by the Additional District Judge at Jaipur. When the matter was listed on 10.1.2012, this Court was informed that the matter was listed for pronouncement at Jaipur and only thereafter arguments were heard on behalf of counsel for the plaintiff on the application. This Court was also informed today before hearing commences that the interim application of defendants no.2 to 4 has been dismissed and the matter has been adjourned to 21.1.2012 for passing an order on an application filed by
CS(OS) 373/2011 Page 19 of 25 plaintiff herein for dismissal of the suit under Order VII Rule 11 CPC read with Section 142(2) of Trade Marks Act. Pursuant to the orders passed by this Court on 18.2.2011 two Local Commissioners, who were appointed visited the office of defendant no.1. The report of the Local Commissioner clearly shows that the Local Commissioner did not visit the office of defendant no.2. Prima facie it seems that defendant no.2 had made this averment in the plaint filed in the Court at Jaipur only with a view to mislead the Court at Jaipur that the Local Commissioner along with the representative of the plaintiff had visited the office of defendant no.2 and threatened defendant no.2, which led to the filing of the suit by them under Section 142 of Trade Marks Act.
30. I have carefully perused the pleadings and documents on record and the statement recorded in court of Mr.Rakesh Mamnani, Legal Officer of defendant No.1. Statement of Mr. Rakesh Mamnani reads as under:
"Statement of Rakesh Mamnani, s/o Shri Ghanshyam Das Mamnanz, aged 31 years, r/o Mamnani Kunj, Plot No.644/6, 12 th B Road, Sardarpura, Sodhpur -343003 (on S.A.)
1. I am working as Legal Officer with Data Infosys Limited since March, 2009. My office is at Station Road, Durgapura, Jaipur. Mr. Babu Lal Data, Mr. Deepak Data, Mr. Nitin Walia, Mr. Mukesh Gupta, Mr. M.L. Oswal and Ms. Ritika Data are the Directors of Data Infosys Limited.
2. The office of BharatBerry Technologies Pvt. Ltd. is at D-47, Laxaman Marg, Hanuman Nagar, Vaishali Nagar, Jaipur. Mr. Ajay Data, Mr. Deepak Data and Mr. Nitin Walia are the Directors of BharatBerry Technologies Pvt. Ltd. I am also looking after the affairs of BharatBerry Technologies Pvt. Ltd.
3. The suit filed by BharatBerry Technologies Pvt. LTd. at Jaipur has been instituted by me on behalf of BharatBerry Technologies Pvt. LTd. I have signed and verified the plaint.
CS(OS) 373/2011 Page 20 of 25
4. Mr. Nitin Walia had signed and verified the written statement filed in this case.
5. I was not present in the office of Data Infosys Limited when the Local Commissioner visited on 2nd March, 2011. I was on leave on that day. I came to know of the inspection of the Local Commissioner after one day, i.e., on 3rd March, 2011.
6. The Board of Directors of BharatBerry Technologies Pvt. Ltd. took the decision to file the case at Jaipur. The meeting of the Board of Directors took place on 3rd March, 2011 at the office of Laxaman Marg, Hanuman Nagar, Vaishali Nagar, Jaipur at 10:00 o‟clock. I was present in the meeting in which the decision was taken to file the suit at Jaipur. The Board resolution was also passed in the meeting. I can produce the Board resolution before this Court.
7. I was aware on 3rd March, 2011 when the Board meeting took place that an injunction order has been granted by this Court and the Local Commissioner proceedings of 2nd March, 2011.
8. I do not know whether Data Infosys Limited and BharatBerry Technologies Pvt. Ltd. are using Software Development Kit (SDK) or BlackBerry Enterprise Server (BES) software of the plaintiff. I will find out from the technical department and will also produce the relevant records in this regard on the next date of hearing."
31. Before dealing with the submissions made by Mr.Bansal on merits, the facts of this case would unfold the conduct and manner in which defendant Nos.2 to 4 have successfully defeated and violated interim orders passed by this court on 18.02.2011, only on the ground that they were not specifically arrayed as parties to the present suit. The facts would also show that once the defendants No.2 to 4 who are closely connected with defendant no.1 became aware of the interim order dated 18.02.2011 passed by this court, they successfully frustrated the interim
CS(OS) 373/2011 Page 21 of 25 order by filing a suit under Section 142 of the Trade Marks Act in the Court of Additional District Judge No.VII, Jaipur, Metro Jaipur.
32. Based on the documents placed on record and the submissions made by Mr.Jain, senior counsel for the plaintiff, and upon the statement made by Mr.Rakesh Mamnani, the following undisputed facts would show that: (i) defendants no.1 and 2 are closely connected with each other. Mr.Ajay Data and Mr.Nitin Walia are Directors/CEO/responsible officers of BBTPL and defendant no.1;
(ii) at the time when the Local Commissioners visited the office of defendant no.1, Mr.Ajay Data and Mr.Nitin Walia were present. This is evident from the report of the Local Commissioner;
(iii) Copy of the order dated 18.2.2011 was handed over to Mr.Ajay Data and Mr.Nitin Walia, which was duly received by them. This is evident from the report of the Local Commissioner and thus both Sh. Ajay Data and Mr.Nitin Walia had knowledge of the Interim Order passed by this Court.
(iv) No Objection Certificate, which was issued by defendant no.1 to Registrar of Companies, giving its no objection for registration of the new company using the word Bharat Berry. The fact shows the closeness of the two companies. This is evident from the copy of No Objection Certificate filed by defendants with its list of document son 19.4.2011; (v) On receipt of copy of the summons and injunction order dated 18.2.2011 Mr.Ajay Data and Mr.Nitin Walia
conducted a meeting of Board of Directors of defendant no.2
CS(OS) 373/2011 Page 22 of 25 and took a decision to file a suit at Jaipur. This is evident from the statement made by Mr.Rakesh Mamnani on
21.4.2011;
(vi) The statement of Mr.Rakesh Mamnani, legal officer of Data Infosys Limited also reveals that Mr.Nitin Walia is the Director of defendants no.1 and 2;
(vii) Mr.Nitin Walia has signed and verified the written statement in the present case; and
(viii) Prior to order dated 18.2.2011 passed by this Court the website of defendant no.1 read as "website designed and managed by Team Date Infosys Limited" and the same website after passing the order dated 18.2.2011 the website read as "website designed and managed by Bharat Berry Technologies Pvt. Ltd. and the domain name www.bharatberry.com is owned and controlled by defendant no.1.
33. The statement of Mr.Rakesh Mamnani, Law Officer, which is reproduced above would show that soon after Local Commissioner visited the office of Data Infosys Limited and handed over a copy of the injunction order, the Board meeting of defendant no.2 was called on 3.3.2011 at 10.00 a.m. and it was decided to institute the suit had Jaipur. The Law Officer who signed and verified the plaint with regard to the suit to be filed at Jaipur and also stated in the statement that when the Board meeting took place he was aware of the injunction order having been passed and the proceedings of the Local Commissioner on 2.3.2011. Both Mr. Ajay Data and Mr. Nitin Walia were also present at the time when the Local Commissioner visited the office of defendant no.1. Having regard to the peculiar facts of this case and the manner in which defendants no.2-4 have
CS(OS) 373/2011 Page 23 of 25 conducted themselves, I deem it appropriate to extend the injunction order against defendants no.2-4 before hearing the applications at the earliest date possible. At this stage, this order is necessary to be passed at the earliest opportunity available. To meet the ends of justice and with regard to the manner the proceedings have been conducted by defendants no.2 to 4, defendants no.2 to 4, their servants, agents, employees, persons, sister concerns, assignees, are restrained from using the mark Berry as part of their trade mark/name or any other name similar to the plaintiff‟s trade mark „BlackBerry‟ till the next date of hearing.
34. Even on the merits of matter, prima facie, I am of the view that there is no suppression of facts by the plaintiff as merely because in one of the registrations there is a disclaimer, it would be of little or no consequence as there are subsequent registrations in favour of the plaintiff where there is no disclaimer. I am in respectful agreement with the view expressed by this Court in the case of Cadbury India Limited and Ors. (supra). I also find no force in the submission made by learned counsel for the defendants that since the software has not been filed by plaintiff on this ground alone the injunction order should be vacated, as the explanation rendered by Mr.Jain is cogent that the software has been sent for expert opinion and the matter is taking time. There is also no merit in the submission made by learned counsel for the defendants that there are many players in the market, who are using the suffix BERRY, for the reason that the names have no phonetic similarity and the products are entirely different. As far as Burberry is concerned, it is primarily a clothing company and it does not deal in mobile phones. The submission made by Mr.Bansal shall be considered at length when the applications under Order XXXIX Rules 1 and 2 CPC and Order XXXIX Rule 4 CPC are heard in detail.
CS(OS) 373/2011 Page 24 of 25
35. Prima facie the plaintiff has been able to make out a strong case on merits on the basis of which the injunction order was granted on 8.2.2011 and for the reasons stated above, the order dated 8.2.2011 is extended to newly added defendants no.2-4. Prima facie, I am also of the view that defendants have willfully violated the order dated 8.2.2011 passed by this Court as they were well aware of the fact that defendant no.1 had been injuncted from using the software and the mark BERRY. Being common Directors, defendants no.2-4 circumvented the order dated 8.2.2011 passed by this Court by conducting business in their pocket company, defendant no.2. Defendants have interfered in the administration of justice and they have willfully disobeyed the order passed by this Court on 18.2.2011. Defendants no.3 and 4 shall show cause as to why contempt proceedings be not initiated. Defendants no.3 and 4 are also directed to remain present in Court on the next date of hearing.
36. I.A.NO.6112/2011 stands disposed of.
CS(OS) 373/2011, I.A.NOS.2476/2011, 2478/2011, 7578-79/2011
37. List on 7.2.2012.
G.S.SISTANI,J
JANUARY 12, 2012

PITAM JANKALYAN SAMITI VS GOVT. OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI



  W.P.(C) 5329/2012



  PITAM JANKALYAN SAMITI ..... Petitioner

  Through Mr. Ajay Amitab Suman and Mr. Deb Nandan Rajak, Advs.


versus



  GOVT. OF NCT OF DELHI AND ORS ..... Respondents

  Through Mr. Rajiv Nanda, Adv. for R-1 and

  R-2.



  CORAM:

   HON'BLE THE ACTING CHIEF JUSTICE

   HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW



   O R D E R

   29.08.2012



  It is argued by learned counsel for the petitioner that respondents
  no.3 and 4 are trying to grab public land bearing khasra nos.103/23/2 and
  103/24 situated in Village Karala, New Delhi. The petitioner has
  produced the information supplied to him by the Office of the Sub-
  Divisional Magistrate (Saraswati Vihar), Kanjhawala, Delhi under the
  Right to Information Act, as per which, the land covered by the aforesaid

  khasra numbers is mutated in the name of Gram Sabha under Section 81 of the Delhi Land Reforms Act, 1954. It is submitted in spite thereof the
  authorities have given permission to respondents no.3 and 4 to construct
  a boundary wall on the said land and it amounts to grabbing of a public
  land by these respondents.

  Notice.

  Mr. Rajiv Nanda, learned counsel accepts notice on behalf of
  respondents no.1 and 2. He wants some time to verify the facts and to
  file the status report.

  In the meantime, notice be issued to respondents no.3 and 4,
  returnable for 19th September, 2012.

  Copy of this order be given dasti under the signature of the Court
  Master.

  ACTING CHIEF JUSTICE









   RAJIV SAHAI ENDLAW, J.

  AUGUST 29, 2012

  dk
  

IN THE HIGH COURT OF DELHI AT NEW DELHI



  W.P.(C) 5329/2012



  PITAM JANKALYAN SAMITI ..... Petitioner



  Through: Mr Deb Nandan, Adv.








Versus







  GOVT. OF NCT OF DELHI AND ORS ..... Respondents



  Through: Mr Rajiv Nanda and Ms Shawna, Advs. for Respondents 1,2 and 4







  CORAM:



   HON'BLE THE CHIEF JUSTICE



   HON'BLE MR. JUSTICE V.K. JAIN



   O R D E R



   10.04.2013







  This petition in public interest has been filed by Pitam Jankalyan

  Samiti, alleging construction of boundary wall on public land comprising

  Khasra No. 103/23-24 of Village Karala. It is alleged in the petition

  that respondent No. 3, who was earlier posted as SDM in connivance with

  the land grabbers, allowed construction of boundary wall upon public land

  by one Dr. Krishna Kumari Thakran. When a complaint of illegal

  construction of public land and its grabbing was made, respondent No. 3

  cancelled the permission granted by him. The petitioner has, therefore,

  sought a direction to the respondents to remove encroachment on the

  aforesaid public land.



  2. In its reply, respondent No. 4, who is the SHO of the concerned

  area,



  W.P.(C) 5329/2012 Page 1 of 8



  has stated as under:-



  It is submitted that Smt. Sheela Devi had given a complaint to the

  police wherein she alleged that her land of Khasra No.103/23/2, Rajiv

  Nagar, Phase-II, Delhi is lying for many years. The measurement of this

  land is 2 bigha 5 biswa i.e. about 2520 sq. yards and out of this land

  about 1260 sq. yards belongs to her jeth Rajinder Singh and was sold to

  the same by her father-in-law. Dealer Arun Thakran and Ram Kala started

  to claim the owner of her land themselves when she went to clean her land



  and she was threatened. Lateron, on the basis of the complaint ASI Ram
  Kishore was deputed to conduct the inquiry and after inquiry, it was

  found that Sh.Hoshiyar Singh S/o Sh. Sher Singh R/o Village and P.O.

  Karala, Delhi was the landlord of Khasra no.103/23/2, Rajiv Nagar, Phase-

  II, Delhi and he was the father-in-law of complainant Sheela. Sh.

  Hoshiyar Singh had sold the land i.e. Plot No.C-8 to C-12 measuring area

  880 sq. yards, Khasra No.103/18/1, 17, Plot No.C-13 to C-16 measuring

  area 400 sq. yards, Khasra No.103/23/2, 24, Plot No.C-17-A to C-20,

  measuring area 800 sq. yards, Khasra No.103/23/2, situated at Village

  Karala, Delhi to one Sh. Kishan Chand S/o Tokh Ram R/o 313, V.P.O. Deoli

  on 27.3.1989, who in turn sold the plot no.C-8 to C-12, area measuring

  180 sq. yards of Khasra No.103/18/1, 17, Plot No.C-13 to C-16, area 400

  sq. yards, Khasra No.103/23/2, 24 and Plot No.C-17-A to C-20, area 800

  sq. yards Khasra No.103/23/2/24 located at Village Karala, Delhi to Sh.

  Virender Singh Thakran S/o Hoshiyar Singh through registered General

  Power of Attorney, but the name of the owner was not entered by way of

  mutation in the revenue records. The complainant is wrongly claiming

  herself to be the owner of the land whereas her father-in-law had already

  sold the said land and Dr.Krishna Kumar Thakran wife of



  W.P.(C) 5329/2012 Page 2 of 8



  Sh.Virender Singh Thakran obtained the permission for erecting boundary

  wall over the said land and after getting the permission she erected

  boundary wall over the said land and after getting the permission she

  erected boundary wall over the property. As the father-in-law of the

  complainant has already sold the property and the alleged land was

  finally purchased by Virender Singh Thakran and he is in possession since

  1.9.2002 and the claim of the claimant Sheela Devi is false. Hence the

  complainant of Sheela Devi has been filed. It is further submitted that

  police has taken action and conducted inquiry on the complaint of Smt.

  Sheela Devi.







  3. In their reply, respondents No. 1 and 2 have stated as under:



  The permission was granted by the STF team in the meeting held in this

  regard on 19/07/2011 on the basis of application of Smt. Krishna Kumari

  for repairing/raising the already existing boundary wall. Copy of

  Application made by Smt.Krishna Kumari is enclosed as Annexure A.

  Subsequently, the applicant (Smt. Krishna Kumari) had submitted

  registered GPA document as proof of ownership. It is important here that

  the land in question fall in the Unauthorised Colony Rajeev Nagar, Ph. II

  (Provisional Registration No.961) and Sher Singh Enclave (Provisional

  Registration No.923) and the same is Governed and protected by Govt. of

  NCT OF Delhi Laws (Special Provision) Second Act 2011, for taking any

  legal action. It is also submitted that as per the order dated

  12/12/2007 of Hon ble LG., (ANNEXURE B), All acquired land on which

  possession has not been taken by the government and compensation has not

  been received by the land owners will be treated as private land in r/o

  these unauthorized colonies and All lands vested in Gram Sabha u/s 81 of

  DLR Act will be treated as private land



  W.P.(C) 5329/2012 Page 3 of 8







  unless possession has not been taken by the government. It is further

  submitted that STF was constituted vide Lt. Governor order dated

  30/03/2011, under the chairmanship of area SDM and STF was also assigned

  task to deal with the permission of repair and maintenances of

  buildings/structures already existed. Accordingly when Smt. Krishna

  Kumari made application for raising/repairing of boundary wall, the same

  was taken in the meeting dated 19/07/2011 and permission for the same was

  granted by STF. (ANNEXURE C) However, as soon as information regarding

  dispute of subject land was received in the office, the Permission was

  cancelled immediately vide order dated 19/08/2011, hence allegations made

  by Petitioner is baseless and afterthoughts and denied.



  .. Although it is admitted that Kh. No.103/23/2 is acquired but neither

  possession of the land was taken nor any compensation was released for

  the same to any person by LAC. As regards, Kh. No.103/24, earlier was a

  private land, vested u/s 81 of DLR Act 1954, whose possession was not

  taken over by Gram Sabha, As this Khasra no. also falls in unauthorized

  colony under regularization as per PRC0961. As per details submitted by

  RWA to Urban Development Deptt. (copy of same is also available on UD

  website) as per available record, it is submitted that Possession of said

  land is not taken by Gaon Sabha. As per order dated 12/12/2007 of

  Hon ble LG Delhi, in r/o Govt. and Private land for unauthorized colonies

  under regularization, the land which has been vested u/s 81 of DLR Act,

  1954 and no possession is taken over by Gaon Sabha, will be considered as

  private land and the land in question is vested u/s 81 of DLR Act, 1954
  and

  no possession is taken over by the Gaon Sabha.







  W.P.(C) 5329/2012 Page 4 of 8



  4. It would thus be seen from the reply filed by respondents 1 and 2

  that land in question was acquired by the Government though its

  possession was not taken and compensation has not been taken by the land

  owners. The Administrative Order dated 12.12.2007 referred to in the

  reply of respondents 1 and 2 to the extent it is relevant reads as

  under:-



  In accordance with Para 2.2 of the revised Guidelines-2007 for

  Regularization of Unauthorized Colonies in Delhi as received from the

  Ministry of Urban Development, Government of India under letter No.0-

  33011/2/94-DDIIB-Vol.-XI dated 5th October, 2007, the Lieutenant Governor

  of the NCT of Delhi, is pleased to define the government/Public land

  and/or private land as follows:-







  1. Land under acquisition proceedings







  Government Land: All lands in respect of which the Awards have been

  given, and the landowners have received the compensation, irrespective of

  current physical possession.



  Private land: All lands in respect of which the Awards have been given

  but the landowners have not taken the compensation and are retaining the

  physical possession.



  2. Gaon Sabha land







  Government land: All lands originally vested in the Gaon Sabha at the

  commencement of the Delhi Land Reforms Act, 1954, irrespective of the

  physical possession on ground and all lands subsequently vested in the

  Gaon Sabha under Section 81 of the aforesaid Act, where the physical







  W.P.(C) 5329/2012 Page 5 of 8



  possession is with the Government.







  Private Land: All lands vested in the Gaon Sabha under Section 81 of the

  Delhi Land Reforms Act, 1954 where the physical possession is with the

  original landowners











  5. The order dated 12.12.2007 passed by Lieutenant Governor of Delhi

  does not indicate as to in exercise of which powers such an order was

  passed. Nothing in law prevents the Government from taking possession of

  the land which has been duly acquired by it under the provisions of Land

  Acquisition Act, 1894. In fact, Section 16 of the said Act specifically

  empowers the Collector to take possession of the land which thereupon

  would vest absolutely in the Government, free from all encumbrances. If

  the Government is of the view that any land acquired by it is no more

  required for the purpose for which it was acquired, nothing prevents the

  Government from withdrawing from the acquisition in terms of Section 48

  of the Land Acquisition Act.



  6. Section 81 of Delhi Reforms Act provides that a Bhumidhar or an

  Asami shall be liable to be ejected on the suit of the Gaon Sabha or the

  land owner, as the case may be, for using any land for any purpose other

  than a purpose connected with agriculture, horticulture or animal

  husbandry. The



  W.P.(C) 5329/2012 Page 6 of 8



  Revenue Assistant can also eject such a Bhumidhar or an Asami on receipt

  of information in this regard or on his own motion. Neither the

  statutory right of Gaon Sabha to eject a Bhumidhar or an Asami using land

  for any purpose other than a purpose connected with agriculture,

  horticulture or animal husbandry, by filing a suit in this regard, nor

  the right of the Revenue Assistant to eject such a Bhumidhar or an Asami,

  can be taken away by way of an Administrative order such as an order

  dated 12.12.2007.



  7. The case of the respondents is that on an application filed by Smt.

  Krishna Kumari Thakran, alleging removal of some parts of the boundary



  wall, she was allowed to raise the said boundary wall. We have perused
  the photographs of land in question filed with the petition. It appears

  to us from a perusal of these photographs that it was not a case of

  repair of boundary wall or reconstructing certain removed parts of the

  boundary wall. It appears to us that an altogether new boundary wall has

  been constructed pursuant to the permission granted by the concerned SDM.

  No fresh boundary wall in the garb of repair of an existing boundary wall

  or reconstructing certain removed portions of an existing boundary wall

  could have been constructed pursuant to the permission granted by the

  SDM.







  For the reasons stated hereinabove, we dispose of this petition

  with a



  W.P.(C) 5329/2012 Page 7 of 8



  direction to the respondents to take due action in accordance with law

  for removal of the new boundary wall, if any constructed on the strength

  of the permission granted by the concerned SDM. We, however, make it

  clear that due opportunity of hearing to the concerned person would be

  given by the respondents before taking action in terms of this petition.







  CHIEF JUSTICE















  V.K. JAIN, J



  APRIL 10, 2013



  BG

Cannon Kabushiki Kaisha Vs Ms. Alka Gupta

Intellectual Property Appellate Board

Cannon Kabushiki Kaisha (A ... vs Ms. Alka Gupta Trading As Guide Men ... on 22 February, 2008

Equivalent citations: 2008 143 CompCas 485 NULL

Bench: M Ansari, S Usha

ORDER

M.H.S. Ansari, J. (Chairman)

1. Instant appeal is directed against the order dated 12.9.2006 passed by the Assistant Registrar of Trade Marks in the matter of opposition No. DEL-9199 against application No. 508643.
By the impugned order dated 12.9.2006, respondent No. 3 has allowed the application of respondent No. 1 for registration of the mark 'CANON' label in class 9. The opposition of the appellant was disallowed.

2. Opponent before the learned Registrar is the appellant herein. Respondent No. 1 claims to be the subsequent proprietor of the trade mark in question whereas respondent No. 2 is the applicant who filed the initial application for registration of the label mark in question.

3. It is the case of the appellant that it adopted 'CANON' as a part of its company name as early as the year 1947. It manufactures products of various kinds including office imaging products, computer peripherals, business information products, cameras, optical products amongst others. Appellant has averred that its net sales of products is around $31,815 million and has its presence around the globe through 200 subsidiaries employing around 1,15,583 employees. It is asserted that the appellant has the distinction of being ranked overall 35^th in the Best Global Brands by Business Week. The Fortune magazine has ranked the appellant 154^th in total sales and 96^th in profits for the fiscal year 2004. The appellant also features in Financial Times FT Global 500 for the year 2005 and has been globally ranked 106^th in the category of market capitalization for the year 2005. In the top 10 corporations receiving U.S. patents in 2005 the appellant ranked second with 1,828 patents. The further case of the appellant is that it is the proprietor of the trade mark 'CANON' and is now registered in more than 180 countries and regions worldwide. In India the appellant is registered proprietor of the trade mark 'CANON' in various classes, details whereof are given in para 5 of the appeal. There are about 34 such registrations in India of the trade mark 'CANON' registered since 17.1.1983 in respect of various classes of goods, scientific and electrical apparatus and instruments, computer and computer software, yarns and threads in, lace and embroidery ribands, pins and needles. Thus the appellant asserts that its trade mark 'CANON' is a household name in India and around the world. It is further asserted that the mark through extensive sale and propogation has won the distinction of being a famous mark. The appellant sponsored the world press photo contest and was an official sponsor of the world cup French soccer championship. In the year 1982, the photographic equipment manufactured by the appellant was designated as the official equipment of the IX Asian Games 1982. Signboards depicting 'CANON OFFICIAL CAMERA' in the Asiad were also displayed in the main stadium for the games as well as the Asiad Games villages. The Asian Games were viewed by millions of Indians and the mark became engraved in the memories of Indian public. The mark has been extensively advertised around the world and in India through the print and electronic media as well as through the internet. It is, therefore, the appellant's case that the mark 'CANON', due to decades of use and advertisement has become synonymous with the appellant and the public associates the word 'CANON' with the appellant alone and none else. This is coupled with the fact that the word 'CANON' is a vital and memorable part of the appellants company name since as early as the year 1947. It is, therefore, contended that the mark is entitled to protection from usurpation for different goods.

4. The grievance of the appellant is with respect to the trade mark application No. 508643 filed in the name of Mr. Satyapal and Mr. Virender Kumar trading as M/s Bhagirath Prasad & Company respondent No. 2 herein. The said application was filed on 13.4.1989 for registration of CANON label for the goods Tailor's tape (measuring tape) in class 9. The same was advertised before acceptance in Trade Marks Journal No. 1086 dated 08.09.1994. The appellant filed its notice of opposition based, inter alia on the ground that the mark sought to be registered is identical with the mark 'CANON' of which the appellant is the registered proprietor. Objections were raised under Sections 9, 11(a), 12(1) and 18 of the Act.

5. However, it transpires that a Form TM-16 dated 25.2.1995 was allowed vide order dated 19.2.1997 without giving any opportunity to the appellant for filing its objections and before filing of counter statement of respondent No. 1

6. Respondent No. 1 subsequently filed its counter statement on 10.4.1997. it also filed documentary evidence under Rule 54 vide affidavit dated 5.1.1998. The appellant vide their letter dated 25.7.1997 stated that they were not filing any affidavit evidence in support of opposition and relied on facts stated in notice of opposition. However, appellant filed affidavit evidence dated 21.10.1998 under Rule 55 enclosing documentary evidence in the form of invoice, publicity material, annual reports, sales and publicity expenses from the year 1979 etc.

7. An interlocutory petition dated 28.4.1999 was filed by the appellant on 3.5.1999 raising serious objections to Form TM-16 filed by respondent No. 1 for bringing itself on record as subsequent applicant of the impugned mark by virtue of deed of assignment. By order dated 21.10.1999 the respondents herein were directed to provide their statement on affidavit pertaining to the assignment dated 1.10.1992 apart from furnishing other particulars. It is the case of the appellant that the information was supplied piece meal. Serious objections have been raised with regard to deed of assignment in the context of the objections under Section 18(1) of the Act with respect to the proprietorship in the mark 'CANON'.

8. It must be stated here that there was an application No. 460087 for registration of the trade mark 'CANON' (word per se) pending in class 9 in the name of M/s Bhagirath Prasad and Company, respondent No. 2 herein in respect whereof the appellant was the opponent and the opposition was bearing No. Del-6861.

9. Instant appeal arises out of application No. 508643 label mark dated 13.4.1989 in the matter of opposition Del-9199, whereas the application No. 460087 was in respect of mark 'CANON' (word per se). The opponent in both the applications was the same, appellant herein. Respondent No. 1 had in both the applications filed request on Form TM-16 for coming on record as subsequent proprietor of the mark applied for.

10. With regard to Application No. 460087 in the matter of opposition No. Del-6861, learned Registrar has allowed the opposition of the appellant herein and refused the application for registration No. 460087 to proceed for registration in class 9. A copy of the order dated 12.9.2006 of the learned Assistant Registrar has been filed as annexure 'O' of the evidence of the appellant. By the said order learned Assistant Registrar held that there is an inordinate delay in filing the request on Form TM-16 and there is no explanation for the delay and in that view rejected the request on Form TM-16. Significantly the objection of the opponent as to proprietorship of the applicant under Section 18 of the Act was upheld. It was further held that in the absence of evidence filed on behalf of the applicant the opponent's objection under Section 12 of the Act was sustained. As regards the exercise of discretion it was held in the said order that:
I have given careful consideration of the pleading and evidence placed on record by both the parties. There is no reason for me to exercise the discretion in favour of the applicants.

11. Ms. Sheetal Vohra learned Counsel for the appellant contended that the same learned Assistant Registrar has allowed the application for registration of composite label mark which consists of the word 'CANON' device of a tailor in respect of Tailor's Tape (measure tape) included in class 9. It was submitted that the predominant feature in the label mark is the word 'CANON' being a part of the corporate name of the appellant besides being registered trade mark of the appellant in various classes in India and various countries of the world. Learned Assistant Registrar could not have taken a diametrically opposite view, it was contended. Ms. Sheetal Vohra has referred us to the pleadings and material on record. Our attention was drawn to the order of the learned Assistant Registrar dated 12.9.2006 passed in application No. 460087 B and more particularly to page 437 where at the Form TM-16 was disallowed in that case on the ground of inordinate delay. It was contended by Ms. Sheetal Vohra that in the notice of opposition specific objections have been raised with regard to the alleged assignment. In the order under appeal there is no consideration whatsoever to the objections raised in the opposition. Reference was made to Annexure G at page 310 being the interlocutory petition filed by the opponent before the learned Registrar for hearing of Form TM-16 which was allowed even before filing of counter statement and without opportunity of hearing the opponent. By the order under appeal the interlocutory application was disallowed without assigning any reasons. The only reference to Form TM-16 in the order under appeal is that the hearing was fixed in the matter on 19.12.1997 and TM-16 was allowed. Learned Counsel referred us to annexure H at page 313 of the typeset of papers being the order of the learned Assistant Registrar directing the applicant to provide statements on affidavits for consideration of the actual facts pertaining to assignment of the mark. Learned Counsel also assailed the conclusions and findings arrived at by the learned registrar in the order under appeal rejecting the objections based on Sections 9, 11 and 18(1) of the Act. Learned Counsel has also relied upon several judgments.

12. In reply Shri Ajay Amitabh Suman learned Counsel submitted that notices were issued three times on Form TM-16. Learned Counsel relied upon exhibit A (colly) filled at page 1, 2 and 3 of the typeset of documents filed by the respondent as evidence on its behalf along with reply. Exhibit A fixes the date of hearing of the opposition No. DEL-9199 to application No. 509643 to 19.2.1997. The notice of hearing also bears an endorsement in manuscript "TM-16 allowed". Learned Counsel for the respondent has not been able to explain the endorsement nor has been able to place any order passed by the learned Assistant Registrar allowing Form TM-16 nor it is established before us that any order was passed on Form TM-16 after having afforded an opportunity of hearing.

13. Shri Ajay Amitabh Suman learned Counsel next contended that the opponent ought to have incorporated the challenge by amending the opposition or the only other remedy to the opponent was to file review or appeal against the order allowing the assignment in Form TM-16. It was further contended that in the deed of assignment the issue with regard to the person Virender Kumar or his signatures cannot be raised by the opponent, being a third party to the assignment. In other words it was contended that only parties to the assignment can object to the assignment or defects in the deed of assignment and not any third party. Learned Counsel has also relied upon several judgments in support of his contentions on the merits of the matter.

14. We heard Ms. Sheetal Vohra learned advocate for the appellant and Shri Ajay Amitabh Suman learned advocate for the respondent at the sitting of the Bench at Delhi on 7.2.2008.

15. In the order under appeal the objection under Section 9 of the Act was rejected on the ground that the impugned mark has been used for over a period of atleast 10 years from the date of application. The objection of the appellant raised under Section 11 of the Act which prohibits registration of the mark where there is identity of mark or similarity of goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public which includes the likelihood of association with the earlier trade mark. Learned Assistant Registrar in the impugned order, however, erroneously considered the objection under the repealed Act, 1958 whereas the Trade Marks Act, 1999 had come into force and effect from 15.9.2003.

16. As regards the objection under Section 18 it was observed that the trade mark which consists of several characteristics including the word 'CANON' which is not invented but a dictionary word and that the same has been adopted honestly and bonafidely. It was, therefore, held that the owner cannot prohibit the use by others of such mark in connection with goods of totally different characteristics. Discretion under Section 18(4) was exercised in favour of the applicants on the ground that:
I do not find any reason to exercise my discretion adversely to the applicants.
It was finally concluded:
I have given careful consideration to the pleadings and evidence placed on record by both the parties. The interlocutory petition filed by the opponents is disallowed.
"As a result the opposition No. Del-9199 is dismissed and it is hereby ordered that the application No. 508643 in class 09 shall proceed to registration."

17. In view of the diametrically opposite stands taken by the learned Assistant Registrar in the two applications filed in respect of identical marks applied for registration with the predominant feature of the word 'CANON', we are of the view that instead of going into the merits of the matter, we should remand it back for consideration afresh by the Registrar to hear out the application on Form TM-16 afresh and in accordance with law after affording the opponents opportunity of filing its objections and thereafter affording an opportunity of being heard in the matter.

18. Although elaborate arguments have been advanced before us on merits by both the learned Counsel, we are of the view that as the main question, namely, about the respondent No. 1 coming on record as the subsequent proprietor of the mark by virtue of alleged deed of assignment and request on form TM-16 having been filed, the same was required to be disposed of before considering the matter on merits. Unless the subsequent proprietor was brought on record, question of disposal of the application for registration and opposition thereto on merits does not arise. The evidence of user filed on behalf of subsequent proprietor cannot be a matter of consideration in the application filed for registration of the mark by the alleged owner/adopter of the mark. We also find that the learned Assistant Registrar in the order under appeal has chosen to proceed with the merits of the matter without considering the question with regard to request in Form TM-16. No formal orders appear to have been passed thereon nor have been placed before us with regard to the request made on Form TM-16. We are to infer from the order under appeal that request on Form TM-16 was allowed in favour of respondent No. 1 as it is mentioned in the order under appeal that the TM-16 was allowed. The notices referred to by Shri Ajay Amitabh Suman do not show that the said notices have been issued in respect of hearing fixed for TM-16. As a matter of fact there is no mention or reference to TM-16 at all in those notices, except the manuscript endorsement "TM-16 allowed" at page 1 of exhibit A (colly). The question of the opponents filing any appeal or review against a non existent order does not arise. We are clearly of the view that the opponent was denied opportunity of being heard before the TM-16 was allowed.

19. Learned Assistant Registrar under Section 22 of the Act has been conferred the power to permit an amendment of the application for registration filed under Section 18, corresponding Rule 41 prescribes that an application for amendment of the application is to be made in Form TM-16. Once an application for registration is under consideration and opposition thereto has been filed, amendment to the application for registration, notice thereof is required to be given to the opponent in compliance with principles of natural justice. No amendment, in our view can be allowed or made to the application for registration during the pendency of opposition proceedings without affording an opportunity of hearing to the opponent. It is the opponent in the opposition proceedings that is vitally affected by any orders of amendment to the original application for registration and, therefore, should be afforded an opportunity of being heard in the matter before an application for amendment of the original application for registration is allowed. As regards the contention of Shri Suman that no third party in the assignment can raise objections to the assignment, we are of the view that it is not for us to consider the said contention. We are, accordingly, leaving it open for being raised and considered by the learned Registrar. In the instant case, no opportunity was afforded to the opponent to either file its objections or an opportunity of being heard in the matter before amendment in Form TM-16 was allowed. From the order under appeal it would appear that Form TM-16 was allowed without giving particulars of the date on which the same was allowed. Although it is stated in the order under appeal that the bearing was fixed in the matter on 19.2.1997, the notice annexure 'A' filed on behalf of the respondent shows that it bears a manuscript endorsement showing that Form TM-16 was allowed. It has not been established before us that any hearing was fixed or that any formal order was passed on Form TM-16 on 19.2.1997. The reasons based on which the request on Form TM-16 was allowed is also not known.

20. In the absence of any formal order passed on request on Form TM-16 bringing on record subsequent proprietor, we are not inclined to consider the impugned order as having been validly passed. This is for the reason that unless the request on Form TM-16 is formally allowed the application for registration cannot proceed in the name of the alleged assignee.

21. For the reasons aforesaid, we set aside the impugned order. We however remand the matter and direct that the learned Registrar of Trade Marks shall consider the application filed by respondent No. 1 in Form TM-16 in accordance with law and after affording an opportunity of hearing to the appellant and such other parties as are considered necessary and thereafter dispose of the same by a reasoned speaking order which shall be communicated to the appearing parties and thereafter depending upon the result thereof, it shall be open to the learned Assistant Registrar to dispose of application No. 508643 on its own merits. In the facts and circumstances of the cases there shall be no order as to costs.

Disclaimer:

Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Advocate Ajay Amitabh Suman,

IP Adjutor: Patent and Trademark Attorney

Email: ajayamitabhsuman@gmail.com,

Mob No: 9990389539

Reena Sadh Vs Anjana Enterprises

Reena Sadh vs Anjana Enterprises Through Its ... on 23 January, 2007

Delhi High Court Reena Sadh vs Anjana Enterprises Through Its ... on 23 January, 2007 Equivalent citations: 138 (2007) DLT 582, (2007) 146 PLR 60 Author: J Malik Bench: J Malik JUDGMENT

J.M. Malik, J.

1                     In these proceedings the appellant has picked up a conflict with the ex-parte judgment, which according to her was passed without service to her. Vide his order dated 23.12.2006, the learned Additional District Judge dismissed the application moved under Order 9 Rule 13 C.P.C. In support of her case, she has enumerated the following grounds. Firstly, the decree holder had instituted a suit for recovery which was decreed with costs by the Court of learned Additional District Judge against the judgment debtors wherein the judgment debtors were directed to pay a sum of Rs. 14,50,000/- together with interest @ 24% per annum, both pendente lite and future, till the realization of the amount. It is averred that the suit of recovery was filed against firm M/s Renuka Inc., Judgment Debtor No. 4. So far as the appellant is concerned, she is neither a Director nor Partner nor she is holding any interest in the firm. Despite this, she was imp leaded as a party in the suit. It is explained that she was only an employee of the defendant's firm. Even if it is assumed that any amount was due and payable to the decree holder/plaintiff, then it was the liability of M/s Renuka Incorporation or its Partners to pay the amount and not that of the appellant.

2                     The key ground set up by the appellant/defendant No. 3 was that she was not properly served in this case. The gist of the ordersheets concerning the appellant is as follows. The ordersheet dated 30.08.2001 goes to show that the appellant/defendant No. 3 was served for the said date. On 21.02.2002, it was recorded that defendant No. 3 was absent despite service. Learned Counsel for the defendants No. 1, 2 and 4 Mr. K.K. Sharma submitted that he intended to seek instructions from defendant No. 3 for representing her. The case was adjourned to 22.07.2002. On 22.07.2002, time was sought by the defendants to file written statement whereas written statement of defendants No. 1, 2 and 4 was already filed. The case was adjourned to 12.02.2003. The case was taken up on 13.02.2003. Learned Counsel for the defendants No. 1, 2 and 4 again stated that he would seek instructions from defendant No. 3 as well. It was ordered that written statement be filed by defendant No. 3 within a period of two weeks. The case was adjourned to 08.08.2003. On 08.08.2003, Shri N.P. Kaushik, Learned Joint Registrar of this Court passed the following order:

This is a case where the value of the suit for the purpose of pecuniary jurisdiction is less than Rs. 20 lacs. In view of the orders passed by the Hon'ble Chief Justice the present matter is transferred to the court of Hon'ble District Judge, Tis Hazari Courts, Delhi for assignment to a court of competent jurisdiction. Parties and/or their counsel to appear before the Hon'ble District Judge, Delhi on 25th September, 2003.

It was pointed out that previously the case was instituted before this Court. Subsequently, it was transferred to the District Court as the pecuniary jurisdiction of the District Court was enhanced. The Court of learned Additional District Judge received this case on 25.09.2003. None of the parties except Ghanshyam Das, Partner of M/s Anjana Enterprises was present and the Court ordered that Court notices be issued to defendants and their counsel. On 22.10.2003, defendants could not be served. Court notice was again ordered to be issued for 01.12.2003. On 01.12.2003, defendants were not served. Again, it was ordered that Court notice be issued to the learned Counsel for the defendants for 07.01.2004. On 07.01.2004, the case was adjourned for fresh Court notice to the defendants for 09.04.2004. On 12.02.2004 Mr. Avinash Lakhan Pal, Proxy Counsel for Mr. K.K. Sharma, Advocate appeared and the case was adjourned to 08.04.2004 for filing the reply. On 08.04.2004, defendants appeared through Mr. Avinash Lakhan Pal, Proxy Counsel for Mr.K.K. Sharma. Last opportunity was granted to file the reply subject to payment of costs in the sum of Rs. 5,000/-. The case was adjourned to 26.04.2004. On 26.04.2004, the Court was on leave and the case was adjourned to 03.05.2004. 03.05.2004 was declared as a Holiday and the case was taken up on 04.05.2004. On 04.05.2004,

none appeared on behalf of the defendants, therefore, the case was adjourned to 20.05.2004. On 20.05.2004, the Presiding Officer was on leave and the case was fixed for 06.07.2004. On 06.07.2004, Proxy Counsel appeared for defendants. The case was adjourned for reply to 17.08.2004. On 17.08.2004, none appeared on behalf of the defendants. The case was proceeded against them ex-parte. Vide order dated 17.08.2004, the case was fixed for ex-parte evidence on 29.09.2004. The Court hearings were fixed for 29.11.2004, 14.12.2004, 01.02.2005, 04.03.2005, 04.04.2005, 09.05.2005, 03.06.2005, 11.07.2005, 17.08.2005, 20.09.2005, 01.10.2005, 06.10.2005 and 20.10.2005. The ex-parte decree was passed on 27.10.2005. On none of the above mentioned hearings, anybody appeared on behalf of the defendants.

1                     Learned Counsel for the appellant pointed out that the trial court proceeded with the suit on the assumption that the learned Counsel, who was appearing for the other defendants is also representing the appellant Reena Sadh. No vakalatnama on behalf of appellant/defendant was filed. No memo of appearance was filed on her behalf.

2                     Learned Counsel for the appellant pointed out that interpretation given by the learned Additional District Judge regarding the word "Parties" occurring in Rule 6 of Chapter 13, Delhi High Court Rules is not correct. Learned Additional District Judge held:

The word "parties" used in Rule 6 of Chapter 13 Delhi High Court Rules substantially means and indicates the parties which are contesting the suit. Only they are supposed to be informed and not those parties who have no interest in the matter. The conduct of the JD No. 3 reflects that she had no interest in the matter. According to her own version she had neither appeared herself nor had authorized anyone to appear on her behalf. Thus, the position substantially remains the same. The defendant is to be treated as ex-parte and in case the erstwhile counsel of defendants No. 1, 2 and 4 were looking after her interest as well then they were informed about the transfer of the case. The same counsel Shri K.K. Sharma, Advocate through his colleagues put in appearance even before this Court after the transfer of the case and never even clarified that he does not represent JD No.

3. Therefore, in these circumstances grounds on which setting of decree has been sought do not support and substantiate the cause of the JD No. 3. The judgments relied upon by the Counsel for JD No. 3 in Akttaryar Khan's case and Sushil Kumar Sabharwal's case have evidently no bearing on the facts of this case.

Rule 6 Chapter 13 of Delhi High Court Rules runs as follows:

6. Records to be sent immediately to the court to which case is transferred--When is a case is transferred by administrative order from one Court to another, the Presiding Officer to the Court from which it has been transferred, shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which the case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred.

Learned Counsel for the appellant argued that the notice of transfer should have been sent to the appellant. It is submitted that the appellant was never contacted by or any of the counsel appearing on behalf of the other defendants and the counsel never sought instructions from the appellant. The findings given by the learned Trial Court that the other defendants have to clarify that their counsel was not representing the appellant, is not correct. It was prayed that under these circumstances, the order passed by the learned Additional District Judge should be set aside.

5. All these arguments have left no impression upon the Court. This must be borne in mind that this Court is dealing with an application under Order 9 Rule 13 C.P.C. This Court cannot decide the case on merits. However, plaint shows that defendant No. 3 was an instrument in reaching the above said transactions. Plaint reads that defendant No. 3 had interest in this case. It was alleged that she had been used by defendants No. 1 and 2, who are the sister-in-law and brother of defendant No. 3 in cheating the suppliers. She is also in conspiracy with the defendants No. 1 and 2 in cheating the plaintiff/decree holder and other suppliers. The present judgment debtor, the appellant is already on bail in a criminal case. It is alleged that Reena Sadh used to sit in the aforesaid office of the defendants No. 1 and 2. However, I refrain myself in discussing the evidence in this regard. If the appellant is having any grouse, she should file an appeal against the impugned judgment.

6. Order 9 Rule 11 C.P.C. is of infinite importance. It puts the case of the respondent and the decision taken by the first Appellate Court in an impregnable position. The same is reproduced as hereunder:

R.11 Procedure in case of non-attendance of one or more of served defendants.- Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

This is an indisputable fact that the appellant was served in this case. The record reveals that notice was given to the defendant No. 3 Reena Sadh, wife of Mr. Robin Sadh. The said notice was received by her husband under his signatures on 06.10.2001.

                        7. Under these circumstances, it was not incumbent upon the Court to mention that she was being proceeded against ex-parte or her defense was struck off. It is also clear that Reena Sadh was adopting policy of hide and seek. She was taking the Court for a ride. Her Advocate stated that she was getting instructions for filing the written statement on atleast 2-3 occasions. On 08.08.2003, Joint Registrar Shri N.P. Kaushik recorded the presence of the following persons:

                        Mr. L.D. Adlakha and Mr. Ajay Amitabh Suman for the defendants." Mr. Ajay Amitabh did not state that he was not appearing for defendant No. 3. It was the duty of the Advocate to apprise the Court of the fact that he was not appearing for defendant No. 3, particularly when he represented before the Court on three occasions that he was seeking instructions for filing written statement on behalf of the appellant.

2                     The ordersheet dated 08.08.2003 clearly goes to show that Rule 6 Chapter 13 of Delhi High Court Rules was complied with. The fact that the learned District Judge took some extra precautions to serve the defendants, does not go to belittle the value and significance of order passed by Shri N.P. Kaushik, Joint Registrar.

3                     The gamut of whole facts and circumstances lean on side of decree holder. The Court below has meticulously checked the record with precision and clarity. The appeal is without merits and is, therefore, dismissed. Stay, if already granted stands vacated. No orders as to costs. Trial Court record and copy of this judgment be sent to the Trial Court forthwith. File be consigned to the Record Room.

Reena Sadh MATTER

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Date of reserve : 16.01.2007.

Date of decision: 23.01.2007.

FAO No.20/2007

Reena Sadh ...... Appellant

Versus

Anjana Enterprises Through its Partner Ghanshyam Das Kukreja ......Respondent

Advocates who appeared in this case :

For the appellant : Mr. Chetan Sharma, Sr. Advocate with Mr. Pradeep Sharma, Advocate.

For the respondent : Mr. L.D. Adlakha, Advocate.

J.M. MALIK, J.

                        1. In these proceedings the appellant has picked up a conflict with the ex-parte judgment, which according to her was passed without service to her. Vide his order dated 23.12.2006, the learned Additional District Judge dismissed the application moved under Order 9 Rule 13 C.P.C. In support of her case, she has enumerated the following grounds. Firstly, the decree holder had instituted a suit for recovery which was decreed with costs by the Court of learned Additional District Judge against the judgment debtors wherein the judgment debtors were directed to pay a sum of Rs.14,50,000/-together with interest @ 24% per annum, both pendente lite and future, till the realization of the amount. It is averred that the suit of recovery was filed against firm M/s Renuka Inc., Judgment Debtor No.4. So far as the appellant is concerned, she is neither a Director nor Partner nor she is holding any interest in the firm. Despite this, she was impleaded as a party in the suit. It is explained that she was only an employee of the defendant's firm. Even if it is assumed that any amount was due and payable to the decree holder/plaintiff, then it was the liability of M/s Renuka Incorporation or its Partners to pay the amount and not that of the appellant.

2                   The key ground set up by the appellant/defendant No.3 was that she was not properly served in this case. The gist of the ordersheets concerning the appellant is as follows. The ordersheet dated 30.08.2001 goes to show that the appellant/defendant No.3 was served for the said date. On 21.02.2002, it was recorded that defendant No.3 was absent despite service. Learned counsel for the defendants No.1, 2 and 4 Mr. K.K. Sharma submitted that he intended to seek instructions from defendant No.3 for representing her. The case was adjourned to 22.07.2002. On 22.07.2002, time was sought by the defendants to file written statement whereas written statement of defendants No.1, 2 and 4 was already filed. The case was adjourned to 12.02.2003. The case was taken up on 13.02.2003. Learned counsel for the defendants No.1, 2 and 4 again stated that he would seek instructions from defendant No.3 as well. It was ordered that written statement be filed by defendant No.3 within a period of two weeks. The case was adjourned to 08.08.2003. On 08.08.2003, Shri N.P. Kaushik, Learned Joint Registrar of this Court passed the following order :

 

“This is a case where the value of the suit for the purpose of pecuniary jurisdiction is less than Rs.20 lacs. In view of the orders passed by the Hon'ble Chief Justice the present matter is transferred to the court of Hon'ble District Judge, Tis Hazari Courts, Delhi for assignment to a court of competent jurisdiction. Parties and/or their counsel to appear before the Hon'ble District Judge, Delhi on 25th September, 2003.” It was pointed out that previously the case was instituted before this Court. Subsequently, it was transferred to the District Court as the pecuniary jurisdiction of the District Court was enhanced. The Court of learned Additional District Judge received this case on 25.09.2003. None of the parties except Ghanshyam Das, Partner of M/s Anjana Enterprises was present and the Court ordered that Court notices be issued to defendants and their counsel. On 22.10.2003, defendants could not be served. Court notice was again ordered to be issued for 01.12.2003. On 01.12.2003, defendants were not served. Again, it was ordered that Court notice be issued to the learned counsel for the defendants for 07.01.2004. On 07.01.2004, the case was adjourned for fresh Court notice to the defendants for 09.04.2004. On 12.02.2004 Mr. Avinash Lakhan Pal, Proxy Counsel for Mr. K.K. Sharma, Advocate appeared and the case was adjourned to 08.04.2004 for filing the reply. On 08.04.2004, defendants appeared through Mr. Avinash Lakhan Pal, Proxy Counsel for Mr.K.K. Sharma. Last opportunity was granted to file the reply subject to payment of costs in the sum of Rs.5,000/-. The case was adjourned to 26.04.2004. On 26.04.2004, the Court was on leave and the case was adjourned to 03.05.2004. 03.05.2004 was declared as a Holiday and the case was taken up on 04.05.2004. On 04.05.2004, none appeared on behalf of the defendants, therefore, the case was adjourned to 20.05.2004. On 20.05.2004, the Presiding Officer was on leave and the case was fixed for 06.07.2004. On 06.07.2004, Proxy Counsel appeared for defendants. The case was adjourned for reply to 17.08.2004. On 17.08.2004, none appeared on behalf of the defendants. The case was proceeded against them ex-parte. Vide order dated 17.08.2004, the case was fixed for ex-parte evidence on 29.09.2004. The Court hearings were fixed for 29.11.2004, 14.12.2004, 01.02.2005, 04.03.2005, 04.04.2005, 09.05.2005, 03.06.2005, 11.07.2005, 17.08.2005, 20.09.2005, 01.10.2005, 06.10.2005 and 20.10.2005. The ex-parte decree was passed on 27.10.2005. On none of the above mentioned hearings, anybody appeared on behalf of the defendants.

 

1                   Learned counsel for the appellant pointed out that the trial court proceeded with the suit on the assumption that the learned counsel, who was appearing for the other defendants is also representing the appellant Reena Sadh. No vakalatnama on behalf of appellant/defendant was filed. No memo of appearance was filed on her behalf.

 

2                   Learned counsel for the appellant pointed out that interpretation given by the learned Additional District Judge regarding the word “Parties” occurring in Rule 6 of Chapter 13, Delhi High Court Rules is not correct. Learned Additional District Judge held :

 

“The word “parties” used in rule 6 of Chapter 13 Delhi High Court Rules substantially means and indicates the parties which are contesting the suit. Only they are supposed to be informed and not those parties who have no interest in the matter. The conduct of the JD No.3 reflects that she had no interest in the matter. According to her own version she had neither appeared herself nor had authorized anyone to appear on her behalf. Thus, the position substantially remains the same. The defendant is to be treated as ex-parte and in case the erstwhile counsel of defendants No.1, 2 and 4 were looking after her interest as well then they were informed about the transfer of the case. The same counsel Shri K.K. Sharma, Advocate through his colleagues put in appearance even before this Court after the transfer of the case and never even clarified that he does not represent JD No.3. Therefore, in these circumstances grounds on which setting of decree has been sought do not support and substantiate the cause of the JD No.3. The judgments relied upon by the Counsel for JD No.3 in Akttaryar Khan's case and Sushil Kumar Sabharwal's case have evidently no bearing on the facts of this case.” Rule 6 Chapter 13 of Delhi High Court Rules runs as follows :“6. Records to be sent immediately to the court to which case is transferred--When is a case is transferred by administrative order from one Court to another, the Presiding Officer to the Court from which it has been transferred, shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which the case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred.”

Learned counsel for the appellant argued that the notice of transfer should have been sent to the appellant. It is submitted that the appellant was never contacted by or any of the counsel appearing on behalf of the other defendants and the counsel never sought instructions from the appellant. The findings given by the learned Trial Court that the other defendants have to clarify that their counsel was not representing the appellant, is not correct. It was prayed that under these circumstances, the order passed by the learned Additional District Judge should be set aside.

5. All these arguments have left no impression upon the Court. This must be borne in mind that this Court is dealing with an application under Order 9 Rule 13

C.P.C. This Court cannot decide the case on merits. However, plaint shows that defendant No.3 was an instrument in reaching the abovesaid transactions. Plaint reads that defendant No.3 had interest in this case. It was alleged that she had been used by defendants No.1 and 2, who are the sister-in-law and brother of defendant No.3 in cheating the suppliers. She is also in conspiracy with the defendants No.1 and 2 in cheating the plaintiff/decree holder and other suppliers. The present judgment debtor, the appellant is already on bail in a criminal case. It is alleged that Reena Sadh used to sit in the aforesaid office of the defendants No.1 and 2. However, I refrain myself in discussing the evidence in this regard. If the appellant is having any grouse, she should file an appeal against the impugned judgment.

6. Order 9 Rule 11 C.P.C. is of infinite importance. It puts the case of the respondent and the decision taken by the first Appellate Court in an impregnable position. The same is reproduced as hereunder :

“R.11 Procedure in case of non-attendance of one or more of served defendants.-Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.”

This is an indisputable fact that the appellant was served in this case. The record reveals that notice was given to the defendant No.3 Reena Sadh, wife of Mr. Robin Sadh. The said notice was received by her husband under his signatures on 06.10.2001.

7. Under these circumstances, it was not incumbent upon the Court to mention that she was being proceeded against ex-parte or her defence was struck off. It is also clear that Reena Sadh was adopting policy of hide and seek. She was taking the Court for a ride. Her Advocate stated that she was getting instructions for filing the written statement on atleast 2-3 occasions. On 08.08.2003, Joint Registrar Shri

N.P. Kaushik recorded the presence of the following persons:-“Mr. L.D. Adlakha and Mr.Ajay Amitabh Suman for the defendants.” Mr.Ajay Amitabh did not state that he was not appearing for defendant No.3. It was the duty of the Advocate to apprise the Court of the fact that he was not appearing for defendant No.3, particularly when he represented before the Court on three occasions that he was seeking instructions for filing written statement on behalf of the appellant.

1                   The ordersheet dated 08.08.2003 clearly goes to show that Rule 6 Chapter 13 of Delhi High Court Rules was complied with. The fact that the learned District Judge took some extra precautions to serve the defendants, does not go to belittle the value and significance of order passed by Shri N.P. Kaushik, Joint Registrar.

2                   The gamut of whole facts and circumstances lean on side of decree holder. The Court below has meticulously checked the record with precision and clarity. The appeal is without merits and is, therefore, dismissed. Stay, if already granted stands vacated. No orders as to costs. Trial Court record and copy of this judgment be sent to the Trial Court forthwith. File be consigned to the Record Room.

 

Sd/

J.M. MALIK, J.