RAGHUVEER METAL INDUSTRIES LTD VS KAMDHENU LIMITED

$~16

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(COMM) NO.746/2016 & IAs No.7552/2016 (u/O 39 R-1&2 CPC) & 7554/2016 (u/S 149 CPC)

RAGHUVEER METAL INDUSTRIES LTD                            ..... Plaintiff

Through:       Dr. Harsh Surana, Adv.

Versus

KAMDHENU LIMITED                                                                        ..... Defendant

Through:       Mr. Ajay Amitabh Suman, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

%                                                                                   26.08.2016

1.                 This order is in continuation of the earlier order dated 23^rd  August,

2016.

2.                 Inspite of the order, when the matter was called, neither was the counsel for the plaintiff present nor any of the directors present.

3.                 Now, Dr. Harsh Surana, Advocate for the plaintiff has appeared and states that though the directors have not appeared but Mr. Amit Kumar Arora authorised representative of the plaintiff through whom the suit is filed is present.

4.                 The presence of the authorised representative is not a substitute for the presence of the directors whose presence was directed before this Court.

5.                 The counsel for the plaintiff has argued (i) that this is his personal

matter; (ii) that the suit had come up first before this Court on 3^rd June, 2016, when it was adjourned to 7^th July, 2016; (iii) that before 7^th July, 2016,

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the defendant filed a suit against the plaintiff in the Court of the District Judge, Delhi and in which certain orders were passed; (iv) that in view thereof, the plaintiff on 8^th July, 2016 was desirous of adjournment in this suit awaiting the outcome of CM(M) No.644/2016 preferred against the order in the suit filed by the defendant; (v) that the plaintiff is not liable to pay the court fees, since the suit is sought to be withdrawn; (vi) that the easiest thing for the plaintiff to do was not to appear on 23^rd August, 2016 and to have the suit dismissed in default and in which case, the question of recovery of costs imposed on 8^th July, 2016 and court fees from the plaintiff would not have arisen.

6.                 The counsel for the plaintiff appears to be under some misconception that if the suit was dismissed in default, the court fees and costs would not have been recovered. Even in that eventuality, warrants for recovery of court fees and costs as arrears of land revenue would have been issued against the plaintiff.

7.                 The plaintiff had this suit listed before this Court without payment of court fees by filing an application under Section 149 of Code of Civil Procedure, 1908 in which the plaintiff undertook to pay the court fees. If the plaintiff had not filed such application and would not have given such an undertaking, the Registry would not have even put up and listed the suit before this Court.

8.                 On 3^rd June, 2016, when the suit came up before this Court, the counsel for the defendant though not on caveat appeared on seeing the matter in the Cause List and accepted summons. However, since the Hon’ble

Judge before whom the suit was listed on that date recused, the suit was

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adjourned to 7^th July, 2016 with liberty to the plaintiff to mention the matter

before the Vacation Bench for hearing.

9.                 It would thus be evident that the plaintiff took a chance before this Court on 3^rd June, 2016 and finding that the defendant was aware, could not succeed in the said chance. The plaintiff cannot thereby avoid payment of court fees. Merely because the plaintiff, after having instituted this suit and having failed in its designs does not want to pursue the suit, does not entitle the plaintiff to then renege from the undertaking to pay the court fees and furnishing undertaking wherefor the suit was got listed. Similarly, for the costs imposed of Rs.5,000/- and which have also not been paid, there is no explanation.

10.            This Court cannot allow its process to be so abused. Litigants / counsels cannot be permitted to avail of hearing before this Court and / or orders obtained in such hearing, use the same to derive benefit and thereafter not pay the court fees.

11.            As far as the argument urged by the counsel for the plaintiff, of this being a personal matter of the counsel for the plaintiff, it is enquired, whether the counsel is carrying on business in the name of the plaintiff.

12.            The counsel replies in the negative.

13.            There is no explanation for non-appearance of the directors of the plaintiff inspite of direction.

14.            On enquiry, it is informed that Mr. Raj Kumar Pokharana, Mr. Anil Kumar Pokharana and Mr. Sunil Kumar Pokharana are three of the directors

of the plaintiff.

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15.            The counsel for the plaintiff states that though there are some other directors but he is not aware of their names.

16.            It has been enquired from the counsel for the plaintiff, whether he undertakes to produce the said directors in this Court or warrants for their production be issued.

17.            The counsel for the plaintiff undertakes to this Court to produce the aforesaid three directors of the plaintiff.

18.            The counsel for the plaintiff, at this stage, insists upon it being recorded that CM(M) No.644/2016 preferred against the order in the suit filed by the defendant was disposed of by this Court on 11^th July, 2016.

19.            The aforesaid has no bearing on the aspect with which we are concerned.

20.            Accepting the undertaking of the counsel for the plaintiff to produce

the aforesaid three directors of the plaintiff before this Court on 29^th August, 2016, list on 29^th August, 2016.

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

RAJIV SAHAI ENDLAW, J.

AUGUST 26, 2016

bs..

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ABHOY KUMAR JAIN VS VRAJLAL MANILAL & COMPANY AND OTHERS

$~13

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                                          Judgment delivered on: 02.02.2017

+                   W.P.(C) No.7941/2012

ABHOY KUMAR JAIN		..... Petitioner
		Versus
VRAJLAL MANILAL & COMPANY
AND OTHERS		... Respondents
Advocates who appeared in this case:
For the Petitioner	:	Mr Sanjeev Sindhwani, Senior Advocate with Mr Ajay
		Amitabh Suman.
For the Respondents	:	Mr Ripu Daman Bhardwaj for R-2/Union of India.

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT 02.02.2017

SANJEEV SACHDEVA, J. (ORAL)

W.P.(C) No.7941/2012 & CM No.19913/2012(stay)

1. The petitioner impugns order dated 07.11.2012 passed by the Intellectual Property Appellate Board (hereinafter referred to as the IPAB), allowing the Original Rectification Application filed by the respondent for removal of the mark of the petitioner “Tufan” under registration No.1148910, in class 34, thereby rectifying the trademark of the petitioner.

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2.                 The respondent claims to be a registered proprietor of trademark “Toofan Bidi”, registered consequent to registration application TM-1 filed on 17.10.2001. The petitioner claims to be a registered proprietor of the impugned trademark “Tufan” applied vide the TM-1 filed on 07.11.2002.

3.                 The respondent filed the rectification application seeking rectification of the register of the Registrar of Trade Marks and for removal of the trademark “Tufan” registered in favour of the petitioner.

4.                 There is no dispute between the parties that the parties consider the rival trademarks as deceptively similar. The dispute is with regard to the priority in adoption of the mark by the parties. Both the parties dispute the claim of each other with regard to the date of the respective adoption. The petitioner claims to have adopted the mark

“Tufan” in the year 1998 and the respondent claims to have adopted the mark “Toofan Bidi” in the year 1999. The petitioner disputes that the respondent adopted the mark in the year 1999 and contends that the same was adopted much later and likewise the respondent disputes that the petitioner adopted the mark in the year 1998 and contends that the same was adopted much later than what is claimed.

5. On 07.11.2012, when the petition was listed before the IPAB and disposed of by the impugned order, the petitioner (respondent before IPAB) was not present. It is contended by the petitioner that

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on account of medical reasons of the mother of the petitioner, the petitioner could not before the IPAB, thus there could be no representation.

6.                 The impugned order dated 07.11.2012 is assailed, inter alia, on the ground that the order is an ex parte order and does not take into account the various contentions and submissions as well as the documents placed on record by the petitioner.

7.                 It is contended that though the order records that the IPAB has considered the material placed before it, the order does not give any reasons for accepting the contention of the respondent and rejecting the statement of defence and the material placed by the petitioner before the IPAB. It is contended that the IPAB has not even examined the material placed by the petitioner.

8.                 Learned senior counsel for the petitioner pointed out to certain invoices filed by the respondent before the IPAB to contend that these were not genuine as there were certain discrepancies in the said invoices.

9.                 Without going into the controversy being raised by the petitioner with regard to the genuineness or otherwise of the material placed by the respondent before the IPAB, since the impugned order is an ex parte order and apparently does not consider the statement of defence and the material placed by the petitioner before the IPAB, the impugned order dated 07.11.2012 is set aside. The Trademark of the

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petitioner “Tufan” is restored on the register of Registrar of Trademarks. The matter is also remitted to the IPAB for reconsideration of the case of the parties.

10.            Learned senior counsel for the petitioner has contended that there are certain more documents and evidences that the petitioner would like to place before the IPAB. He contends that the said material has been placed on the record of this case. Learned counsel for the respondent opposes the request for filing additional documents and evidences.

11.            Since I have set aside the impugned order and passed an order of remit, solely on the ground that the order is an ex parte order and has not taken into account the statement of defence and the material placed by the petitioner before the IPAB, I am not considering the prayer of the petitioner for filing additional documents/evidence before the IPAB and leave it to the discretion of the IPAB to consider the prayer in accordance with law, if such a prayer is made to the IPAB.

12.            Since the rectification was filed in the year 2006 and the order impugned herein was passed in 2012, I deem it expedient to direct the IPAB to expedite the hearing of the petition and dispose of the same preferably within a period of six months from the date the matter is taken up for the first time by the IPAB.

13.            It is clarified that the Court has not examined the merits of the

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contentions of either the petitioner or the respondent and has passed

the order of remit in the limited circumstances, as noted hereinabove.

14.            Learned counsel for the parties inform that on account of insufficient number of members, no sittings of the IPAB are being held. Parties are given liberty to approach the IPAB for fixing an earlier date for commencing the hearing in the matter once the Appellate Board is reconstituted.

15.            The Writ Petition is disposed of in the above terms.

16.            There shall be no order as to costs.

17.            The Registry is directed to transmit the records of the IPAB back to the IPAB, as expeditiously as possible.

18.            Dasti under the signatures of the Court Master.

SANJEEV SACHDEVA, J

FEBRUARY 02, 2017

‘Sn’

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