$~1
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IN THE
HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM)
52/2018
CROCS INC.USA .....
Plaintiff
Through: Mr. Ajay Amitabh Suman, Advocate.
Versus
AQUALLITE INDIA LIMITED AND ANR. .....
Defendants
Through: Mr. Peeyoosh Kalra, Advocate with
Mr. C.A. Brijesh,
Advocate and Mr.
Rohan
Seth, Advocate.
CORAM:
HON'BLE
MR. JUSTICE VALMIKI J. MEHTA O R D E R
% 01.05.2018
1. Let a
copy of the
detailed order disposing
of the interim
injunction
application in this suit passed on 8.2.2018 be placed in this suit
file
being CS(COMM) No.52/2018, alongwith the short order in this suit
dated
8.2.2018 existing in this file.
I.A. No. /2018 (under Order 6 Rule 17 CPC filed by
plaintiff)
2. This
application be numbered by Registry.
3. By this
application the plaintiff seeks to amend the plaint to add
para 33
by stating that the plaintiff had earlier filed a suit on more or less the
same
cause of action and for seeking the same reliefs against the present
CS(COMM) No.52/2018 page 1 of
4
defendants in the District Courts at Saket and that
in this earlier suit by an order dated 9.6.2017, exparte interim injunction was declined to the plaintiff. The
plaintiff then withdrew that earlier suit with liberty, which was granted to
file this suit, but the factum of the exparte injunction being declined by the
Saket District Courts was not mentioned in this suit. It is stated that
plaintiff now seeks to plead this averment of having earlier filed the suit
against the same defendant on more or less the same facts and in which suit exparte injunction was declined to the
plaintiff and the plaintiff be allowed to amend the plaint to this extent on
account of the amendment prayed for being only clarificatory and also because
this fact was not mentioned in the existing plaint because of “ bonafide
opinion of law”.
4. In my opinion, this application is a gross abuse
of process of law. Plaintiff has been found guilty of concealment of material
facts with respect to facts not being stated of non-grant of interim injunction
in the earlier suit, as per the plaint filed in the subject suit filed in
Patiala House Courts, New Delhi (and which has thereafter been transferred to
this Court). The result of concealment was that an exparte injunction was
successfully obtained by the plaintiff. It is noted that in view of the above
facts of
CS(COMM) No.52/2018 page 2 of
4
concealment the exparte injunction granted to the
plaintiff has been subsequently vacated by the order dated 7.9.2017 in an
appeal being FAO No.361/2017.
5. No doubt the law of amendment of pleadings is
liberal, however it is equally settled law that malafide amendments ought not to be allowed. Once the dishonesty of
the plaintiff became apparent and the plaintiff was caught in having concealed
the factum of concealment of filing of an earlier suit on more or less the same
facts against the same defendant wherein plaintiff could not get an exparte
interim order and resultantly the plaintiff derived an advantage by being
successful in getting an exparte
injunction order in this suit on 8.8.2017, therefore this dishonesty which has
been exposed cannot be sought to be undone by allowing this application. If
this amendment is allowed, it would in fact amount to Court permitting a person
to get over his dishonesty of concealment of facts after such a person is
caught at the dishonest act because of the defendants discovering such fact and
then bringing the same to the notice of this Court.
6. This application is therefore dismissed with
costs. Defendant no.1 will file its certificate of fees for today’s hearing
with respect to present
CS(COMM) No.52/2018 page 3 of
4
application, and such certificate of fees supported
by the affidavit of defendant no.1 with respect to fees paid to its counsel for
today’s hearing will be the costs payable in favour of the defendant no.1 by
the plaintiff. Affidavit be filed by the defendant no.1 alongwith the
certificate of fees of its lawyers within two weeks from today and within two
weeks thereafter costs will be paid by the plaintiff to the defendant no.1.
+CS(COMM) No.52/2018
7. Counsel for the defendants states that plaintiff
has not paid the costs as imposed upon the plaintiff in terms of the order
dated 8.2.2018.
8. In my opinion, considering that present suit is
a commercial suit, plaintiff cannot be allowed to take advantage of its own
wrong in not paying the costs, and prima facie this suit ought to have been
dismissed today for non-compliance of the order passed by this Court on
8.2.2018, however since the counsel for the plaintiff states that an appeal has
been filed by the plaintiff against the order dated 8.2.2018 which is coming up
for
hearing before a Division Bench of this Court on
4.5.2018, list on 21st August, 2018.
VALMIKI J. MEHTA, J
MAY 01, 2018/Ne
CS(COMM) No.52/2018 page 4 of
4
