$~76
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
RFA
68/2009 & C.M. No. 30627/2018
RAKESH KUMAR AGGARWAL .....
Appellant
Through : Mr S.K.Bansal and Mr Ajay Amitabh
Suman,
Advocates.
versus
LOCK & LOCKING DEVICES .....
Respondent
Through : Mr Harshvardhan Pandey, Advocate.
CORAM:
HON'BLE
MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R
% 09.08.2018
1.
This order is in continuation of yesterday’s order.
2.
The counsel for the
appellant/applicant has handed over in Court the affidavit, as was directed to
be filed, along with documents and which are taken on record.
3.
As per the said affidavit and as
per the counsel for the appellant/applicant, whatever stocks bearing the
impugned mark were in possession of the appellant/applicant, at the instance of
the respondent, have already been seized by the Police from the premises of the
appellant/applicant.
4.
The appellant/applicant however
states, that the appellant/applicant, from the month of April, 2018 till the
month of July, 2018 has effected sale of the goods with the impugned mark to
RFA
68/2009 page
1 of 4
his distributor and the distributor of the appellant/applicant may be in
possession of such of those goods with the impugned mark which have not been
sold till date. It is contended that just like the respondent has got the goods
with the impugned mark seized from the premises of the appellant/applicant, the
respondent may also have the goods with the impugned mark seized from the
premises of the distributor of the appellant.
5.
However, copies of the invoices
filed by the appellant/applicant show the delivery to the distributor of the
goods with the impugned mark being by way of sale with IGST paid thereon. The
appellant/applicant present in person, on enquiry, states that IGST is paid on
inter-State sales. I have thus enquired from the counsel for the
appellant/applicant that once the appellant has delivered the goods with the
impugned mark to his distributor, by way of sale, and not as an agent and not
on sale or return basis, how can the distributor of the appellant/applicant be
bound by the injunction order.
6.
It has been pointed out that the
subject goods, being padlocks, bearing the embossed impugned mark, would be in
possession of the purchasers thereof also and the injunction cannot possibly
direct the persons who have purchased the said goods, from using the same.
7.
The counsel for the
appellant/applicant confirms that the transaction between the appellant and the
distributor namely M/s. Vijayan Lock Industries, Navi Mumbai-400708, is of sale
and the property in goods has been transferred and M/s Vijayan Lock Industries
has not taken the goods on sale or return basis.
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68/2009 page
2 of 4
8.
The counsel for the respondent
agrees that in such situation, the distributor of appellant will not be bound
by the injunction; he however states that VIJAYAN was the impugned mark and M/s
Vijayan Lock Industries must be an entity of the appellant only.
9.
The counsel for the
appellant/applicant, on enquiry, under instructions from the
appellant/applicant present in Court, states that Ankit Aggarwal son of the
appellant/applicant, is the sole proprietor of Vijayan Lock Industries.
10.
The same shows the mala fides of the appellant/applicant in
moving the subject application, without disclosing to the Court that the
distributor is an alter ego of the appellant/applicant. In fact the counsel for
the appellant/applicant ought to have informed the Court, at the outset, of
this fact. The Court cannot possibly decide all the large number of matters
listed before it, without trusting the counsel; if such faith is lost, in each
case, the Court will have to read the file minutely, without believing single
word of the counsel, making the presence of the counsel redundant.
11.
The aforesaid act of the
appellant/applicant is found to be a clear attempt to overreach the Court and
to interfere with and obstruct the administration of justice and the
appellant/applicant is liable to be proceeded against therefor. Not only so,
all the goods, as per the particulars given in the affidavit handed over today,
are liable to be delivered by the appellant/applicant to the respondent and if
not delivered by the appellant/applicant, are liable to be seized from the
premises of M/s. Vijayan Lock Industries.
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68/2009 page
3 of 4
12.
The counsel for the appellant/applicant
apologizes and states that the appellant/applicant will make amends and will,
within one week deliver all goods on his own to the respondent.
13.
The undertaking to this effect is
given by the appellant/applicant present in Court, which is accepted and the
appellant/applicant has been explained the consequences of the breach of the
undertaking given to this Court.
14.
The counsel for the
appellant/applicant also states that the appellant/applicant is willing to pay
damages in the sum of Rs.1 lakh to the respondent as penalty for the aforesaid
misconduct of the appellant/applicant. An undertaking is given to pay the said
amount also within one week of today and which undertaking is also accepted.
15.
The application is dismissed.
16.
If the appellant/applicant is in
violation/breach of any of the undertakings aforesaid, it will be open to the
respondent to take appropriate action against the appellant/applicant including
for breach of undertaking given to this Court. In such eventuality, it will
also be open to the respondent to take the Police to whichsoever premises of
the appellant/applicant or of any of his family members, for the purposes of
seizure of the goods, particulars of which are given in the affidavit.
Dasti.
RAJIV SAHAI ENDLAW, J
AUGUST 09, 2018/‘Sn’..
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68/2009 page
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