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IN THE
HIGH COURT OF DELHI AT NEW DELHI
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CS (COMM) 929/2016
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KRBL
LTD
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Plaintiff
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Through:Mr.
S. K. Bansal, Mr. Ajay Amitabh
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Suman and
Mr. Veerendra Kumar
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Sinha,
Advocates. (M:9990389539)
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versus
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LAL
MAHAL LTD. AND ANR.
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Defendants
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Through:Mr. Mohan
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Vidhani, Mr.
Sumit
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Aggarwal and
Ms. Shweta Thakur,
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Advocates.
(M:9811083706)
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CORAM:
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JUSTICE PRATHIBA M. SINGH
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O R D E R
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04.10.2018
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I.A. 13698/2018 (u/O XXII Rule 10
CPC)
1.
This is an application seeking
substitution of M/s. Vigyat Trade Pvt. Ltd. in place of the present Defendant
No.1 as the said entity has now purchased the trademark CHURCH GATE from Shri
Lal Mahal Ltd. For the reasons stated in the application, M/s. Vigyat Trade
Pvt. Ltd. is impleaded as Defendant No.3 in the matter. However, the original
Defendant, Shri Lal Mahal Ltd. shall remain a Defendant in the present suit.
Ordered accordingly.
2.
I.A. is disposed of.
REVIEW APPLICATION 381/2018
3.
Mr. Vidhani, learned counsel
appearing for the Defendants/review applicants submits that the order dated 7th September, 2018 is liable to be
reviewed, inasmuch as the delay before the Local Commissioner and the
CS (COMM)
929/2016 Page 1
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non-appearance on three dates was completely inadvertent. He has pointed
out
various dates on which the Plaintiff sought adjournments before the
Local
Commissioner.
4.
The
background of the
present suit is
that vide order
dated 23rd
February,
2015, while expediting the trial in the suit, injunction application
was disposed of. Since 2015, for whatsoever reasons, trial has not been
concluded. On 30th July, 2018, the Local Commissioner had put up the
matter before the Court by passing the following order.
“30.07.2018
Case is listed for further cross examination of PW1
Sh.
Sunil Kapoor, who is present.
None is present on behalf of the
defendant. Even on the last two dates no one was present on its behalf. However
today arrangement of computer operator has not been made nor judicial file has
been summoned. Ld. Counsel for the plaintiff submits that the plaintiff has
been spending money in making arrangement for recording of evidence including
on the last two dates also, but suddenly, Ld. Counsel for the defendant has
stopped attending. Consequently there is a prayer that the right of the
defendant to cross examine PWl Sh. Sunil Kapoor, be closed.
PW1 Sh.
Sunil Kapoor has filed certain documents. In view of the continued absence of
the defendant today and also on the last two consecutive dates, it is observed
that the defendant has failed to avail right of further cross examination of
the said witness.
In view
of the above report will be filed before the Hon'ble Court.”
5.
Accordingly, right of the Defendants to cross
examine was closed on
27 th August, 2018. None appeared for
the Defendants even on the said date and the matter was listed for final
arguments.
CS (COMM)
929/2016 Page 2
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6.
When
the matter was
listed for hearing
final arguments on 7th
September, 2018, learned counsel for the Defendants appeared before the
Court and informed the Court that trademark CHURCH
GATE has been sold to M/s. Vigyat Trade Pvt. Ltd. After perusing the
assignment deed, which was placed on record by learned counsel for the
Defendants, this Court directed the Defendants to deposit a sum of Rs.30 lakhs
in the Court in order to safeguard the interests of the Plaintiff. No leave was
sought by the Defendants prior to the sale of the said trademark. Admittedly,
the present suit in respect of the very same mark was pending.
7.
Today, in the review application,
learned counsel for the Defendants submits that right from the beginning, the
Plaintiff has been delaying the recordal of evidence. Mr. Vidhani submits that
the entire suit is itself valued at Rs.20 lakhs and so he is willing to deposit
a bank guarantee for a sum of Rs.10 lakhs.
8.
It is noticed that the suit has
been pending since 2014. For whatsoever reasons, there is no injunction in the
matter. Shri Lal Mahal Ltd., which is the impleaded Defendant, has participated
in the proceedings since beginning and at no point of time, any intention was
expressed before the Court that the trademark CHURCH GATE was being sold by it
to a third party. The trademark, being subject matter of the dispute in the
present case, the Defendant has earned a huge sum of money by selling the said
trademark during the pendency of the present suit. Admittedly, on three dates
there was no appearance before the Local Commissioner. Prior to that, when the
Plaintiff delayed the recordal of evidence, the Defendants did not raise any
grievance, obviously, because there is no injunction in the matter. Mr. Vidhani
submits that there is no order of this Court not to sell the
CS (COMM)
929/2016 Page 3
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trademark during the pendency of the suit. Hence, the order for deposit
of Rs.30 lakhs ought to be reviewed. However, when the matter was listed for
final arguments on 7th September, 2018, for the first time the Defendants chose to inform the
Court that the trademark has been sold to a third party.
9.
The present review application
seeks to place on record the facts about the Commissioner’s proceedings.
Irrespective of the Plaintiff’s and
Defendants’ conduct before the Local Commissioner, the reasons behind
directing deposit of Rs.30 Lakhs is two fold i.e. firstly to safeguard the
interest of the Plaintiff in the present suit in respect of any final order
that may be passed by this Court, and secondly, because Defendant No. 1 had
chosen to sell the trademark without taking permission of this Court. The trade
mark is like a property about which questions have been raised in the suit. If
the trade mark is held to be infringing or if an injunction is granted or if a
decree for damages is passed, the new purchaser may be able to completely shirk
the liability by claiming ignorance. The order dated 7th September, 2018 thus directed
the Defendants i.e., the parties who had sold the mark, with complete knowledge
of the present litigation, to deposit an amount of Rs.30 lakhs within four
weeks from the said date. Time for deposit expires on 6th October, 2018.
10.
At this stage, Mr. Vidhani
submits that he represents the newly impleaded Defendant also. He further
submits that the Defendants are willing to give a bank guarantee. If that is
so, a bank guarantee be submitted in favour of the Registrar General of this
Court within two weeks for a sum of Rs.30 lakhs by any of the Defendants.
Review application is disposed of.
List before the Registrar General on 26th October, 2018 for acceptance of
bank guarantee.
CS (COMM)
929/2016 Page 4
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CS (COMM) 929/2016
11.
In the last order, there is a
typographical error and a part of the sentence appears to have been missed,
which has been corrected. Corrected order be uploaded.
12.
Amended memo of parties be filed
within 10 days. Remaining cross examination of the Plaintiff’s witnesses shall
be conducted on two dates before the Local Commissioner. The entire fee of the
Local Commissioner shall be borne by the Plaintiff. After conclusion of the
evidence of the Plaintiff, the Defendants shall lead their evidence before the
Local Commissioner. The newly added Defendant Company is permitted to lead
evidence along with Defendant No.1, however, not more than five witnesses shall
be examined in total by the Defendants. The evidence of the Defendants shall be
concluded within three months from the date when the
13.
List on 30th October, 2018 before the Local Commissioner
for fixing
the dates
for Plaintiff’s evidence.
14.
List before the Court on 30th January,
2019.
PRATHIBA M. SINGH, J.
OCTOBER 04, 2018/dk
CS (COMM)
929/2016 Page 5
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