Delhi High Court - Orders
Campus Activewear Limited vs Asian Footwears Private Limited & Ors on 26 May, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~27 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 177/2022 & I.As. 4488/2022, 8384/2022
CAMPUS ACTIVEWEAR LIMITED ..... Plaintiff
Through: Mr. Rajiv Nayar, Mr. Jayant Mehta,
Sr. Advs. with Mr. Amrit Singh, Mr.
Zeeshan Hashmi, Mr. Ankit Parashar,
Ms. Anuja Chaudhury, Advocates
(M:8802310640)
versus
ASIAN FOOTWEARS PRIVATE LIMITED & ORS. .... Defendants
Through: Mr. Pravin Anand, Ms. Vaishali
Mittal, Mr. Sauradeep Mokhopadhya,
Advocates (M:9872464015)
Mr. Ayush Jindal, Director of
Defendant Company.
Ms. Shilpa Gupta, Mr. Nitin Sharma,
Advocates for D-2&3
19 AND
+ CS (COMM) 362/2022 & I.As. 8484-88/2022
CAMPUS ACTIVEWEAR LIMITED ..... Plaintiff
Through: Mr. Rajiv Nayar, Mr. Jayant Mehta,
Sr. Advs. with Mr. Amrit Singh, Mr.
Zeeshan Hashmi, Mr. Ankit Parashar,
Ms. Anuja Chaudhury, Advocates
versus
ASIAN FOOTWEARS PRIVATE LIMITED & ORS. ..... Defendants
Through: Mr. Pravin Anand, Ms. Vaishali
Mittal, Mr. Sauradeep Mokhopadhya,
Advocates.
Mr. Ayush Jindal, Director of
Defendant Company
Ms. Shilpa Gupta, Mr. Nitin Sharma,
Advocates for D-2&3.
Signature Not Verified
Digitally Signed CS(COMM) 177/2022 & other connected matter Page 1 of 9
By:DEVANSHU
JOSHI
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 26.05.2022
1. This hearing has been done through hybrid mode. I.A. 8485/2022 (u/S 12 A) in CS (COMM 362/2022)
2. This is an application seeking exemption from instituting pre- litigation mediation. In view of the orders passed in CS (COMM) 132/2022 titled Upgrad Education v. Intellipaat Software, the exemption is granted.
3. I.A. 8485/2022 is allowed and disposed of. I.A. 8486/2022 (for additional documents) in CS(COMM 362/2022)
4. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.
5. I.A. 8486/2022 is disposed of.
I.A. 8487/2022 (for exemption) in CS(COMM 362/2022)
6. Allowed, subject to all just exceptions. I.A. 8487/2022 is disposed of. I.A. 8488/2022 in CS(COMM 362/2022)
7. This is an application seeking extension of time for filing court fees. Let the court fees stamp be deposited within one week.
8. I.A. 8488/2022 is disposed of.
CS(COMM) 177/2022 & I.As. 4488/2022, 8384/2022 CS(COMM) 362/2022 & I.A. 8484/2022
9. These two suits have been filed by the Plaintiff- Campus Activewear Limited against the Defendants out of which, Asian Footwears Private Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 2 of 9 By:DEVANSHU JOSHI Limited- Defendant No.1 is the contesting Defendant. Amazon Seller Services Private Limited-Defendant No.2 and M/s Flipkart Internet Private Limited- Defendant No.3 are the other Defendants. Defendant No.4 is Ashok Kumar / John Doe.
10. Ms. Shilpa Gupta and Mr. Nitin Sharma, ld. counsels, accepts notice for Defendant No.2 and Defendant No.3.
11. The dispute between the parties is in respect of the design and getup of various footwears of the Plaintiff which are alleged to have been imitated by Defendant No.1. The first suit, being CS(COMM) 177/2022, was filed before this Court in March, 2022 in which 14 designs of footwear of Defendant No.1 have been impugned. Initially, the parties were engaged in negotiations for the amicable resolution of the disputes, however, the settlement could not be arrived at. After hearing ld. counsel for the parties, this Court vide order dated 11th April, 2022 directed as under:
"4. The Court has perused the documents and the charts placed by the parties on record. The Court has also been shown the Defendants' shoe products which are objectionable, alongside the corresponding footwear design of the Plaintiff.
5. After some hearing, it appears that the Defendants are willing to resolve the disputes with the Plaintiff. Considering that there is a large range of Defendants' products which is being objected to by the Plaintiff, Mr. Ayush Jindal, on behalf of the Defendant, has given an undertaking on behalf of the Defendants that the Defendants would not, till the next date, manufacture any of the footwears/shoes which are objected to by the Plaintiff in the same colour combination as are set out in the plaint. It is further assured to the Court that Defendants' and the Plaintiff's representatives Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 3 of 9 By:DEVANSHU JOSHI would hold meetings in order to resolve the issues of design of the shoes as also the colour combination thereof and attempt an amicable resolution of the dispute.
6. The undertaking and assurance given on behalf of the Defendant is accepted. Let the representatives of the parties meet over the next 15 days in order to resolve their disputes, failing which, arguments shall be heard in the injunction application on the next date of hearing."
12. Thereafter, the matter came up for hearing before the Court yesterday, i.e., 25th May, 2022. Ld. Senior Counsel for the Plaintiff had also informed the Court that a fresh suit, being CS(COMM) 362/2022, has also been filed by the Plaintiff in respect of 7 other designs of footwear of Defendant No.1. Thus, between the two suits, a total of 21 designs of footwear of Defendant No.1 have been impugned by the Plaintiff.
13. After hearing Counsels for the parties, Justice Manmohan Singh (Retired), Judge, Delhi High Court was appointed as the Mediator to attempt an amicable resolution of the disputes between the parties. The ld. Mediator has held a fruitful meeting with the parties yesterday. A preliminary report has been submitted by the ld. Mediator, a copy of which has been handed over to the Court.
14. As per the ld. Mediator's report, Defendant No.1 is agreeable to discontinue the manufacture and sale of all the 7 designs which are the subject matter of CS(COMM) 362/2022. Insofar as 14 designs of footwear, which are the subject matter of CS (COMM) 177/2022 are concerned, Defendant No.1 is agreeable to discontinue the manufacture and sale of 9 designs. In respect of 4 designs out of the remaining 5 designs, Defendant No.1 has agreed to make some changes in the designs. In respect of the Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 4 of 9 By:DEVANSHU JOSHI remaining 1 impugned design, the Plaintiff is to seek instructions as to whether it wishes to continue to press the allegations in respect of the said design.
15. Heard the ld. Senior Counsels and ld. Counsel for the parties. Out of the total 21 designs that are impugned between the present two suits, the dispute relating to 16 designs for future manufacture and sale thus stands resolved in view of the stand of Defendant No.1 that it does not intend to manufacture and sell those designs in the future. The outstanding issue qua these 16 designs, as per the ld. Mediator's report, is to the manner in which the existing stock of footwear which is already manufactured is to be dealt with. No consensus could be arrived at between the parties in the mediation proceedings in respect of the manner in which the stock is to be disposed of.
16. In order to enable this Court to consider the submissions to be made on behalf of both the parties in respect of existing stocks, it is deemed appropriate to appoint Local Commissioners to visit the following premises which are factories and warehouses where the stock of the Defendant is stated to be kept, in order to ascertain the total stock of footwear relating to all 21 designs impugned in these suits:
Sl. No. Premises Local commissioner
1. Asian Footwears (MUNDKA) Mr. Anmol Chandan,
Khasra No. 78/13/2 & 78/18 and Advocate, (8375015953) Khasra No. 77/14/2, Hiran Kudna Village, Opposite Metro Pillar No. 627, Ghevra, Mundka, New Delhi-
1100041
2. Asian Footwears (Bahadurgarh) Mr. Waize Ali Noor, 304, Footwear Park, Sector 17, Advocate (8527837602) Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 5 of 9 By:DEVANSHU JOSHI Bahadurgarh-124507, Haryana
3. Amazon Warehouse Mr. R.S. Rathi, Advocate Amraberia, Rajput, Joargori Gram (M: 9810868733, Panchayat, P.S. Uluberia, Howrah, 8800981054), West Bengal-711303, India
4. Amazon Warehouse Mr. Prateek Bhalla, Sy. No. 524/1,2,3,4,6; Sy. No. Advocate 525/1,2,3,4,5,6; Sy. No. 526/3,4,5,6; (9858477909) Sy. No. 527 of Madivala Village and Sy. No. 51/1 of Thatanahalli Village, Kasaba Hobli, Anekal Taluk, Bangalore Urban District, Bangalore-562107, Karnataka
5. Amazon Warehouse Mr. Shravan Shukla, GMR Airport City, SurveyNo. 99/1, Advocate (9810763691) Mamidipally Village, Shamshabad, Hyderabad-500108, Telangana.
6. Flipkart Warehouse Mr. Luv Virmani, Advocate Marasandra and Madnahatti-
(M:8980123796) Venkatapura Villages, Kasabi Hobli, Malur Taluk, District- Kolar Malur, Bangalore-563130, Karnataka
7. Flipkart Warehouse Mr. Sandeep Kumar, J.L. No.-9,55 and 8, Mouza- Advocate Chandipur, Harinarayan Chak, (M:8899592346) Amraberia, Howrah-711316, West Bengal
8. Flipkart Warehouse Ms. Karishma Rao Warehouse Building Nos. WE-II, Advocate, Mumbai Renaissance Integrated Industrial (9920126101) Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 6 of 9 By:DEVANSHU JOSHI Area, Village Vashere Bhiwandi, Thane, Mumbai-421302, Maharashtra
9. Flipkart Warehouse Indrajit Singh, Advocate Rectangle No.6,7,8 and 13, Village (9454603668) Khalikpur, Tehsil Badli, District Jhajjar, FC-Farrukhnagar Jhajjar- 124103, Haryana, India
10. Flipkart Warehouse Mr. T. P. Singh, Khasra No. 21//16, 21//25, 22//20/2, Advocate 22//21 and Others, Village Sankpa, (9971529687) Tehsil Farukhnagar, District Gurugram-122503, Haryana"
17. The Local Commissioners shall carry out the following acts:
i. An inventory shall be prepared by each of the Local Commissioners of all the footwear with the 21 designs, which are the subject matter of the present two suits. The chart of the Plaintiff's and Defendant's designs to be used for the purpose of preparing the inventory is attached to the present order as ANNEXURE A. ii. After making the inventory, the Local Commissioners shall return the footwear to the Defendants to be kept in the same premises with the assurance that the Defendants would not dispose of the said stock until further orders of this Court. iii. The date and the quantum of manufacturing of the inventoried goods shall be ascertained by the Local Commissioners. For the said purpose Defendant No.1 shall give access to the computer Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 7 of 9 By:DEVANSHU JOSHI systems which contain the accounts of Defendant No.1. If the computer has any password, the password shall also be given to the Local Commissioners. The accounts shall be procured on a 'pen drive' which shall be filed in the Court with the report of the Commissioners. However, the copy of the same shall not be given to the Plaintiff at this stage. The accounts shall be filed in a pendrive before this Court.
iv. The Local Commissioners may also procure samples and take photographs or videography of the proceedings if it is deemed necessary. Two representatives of the Plaintiff, including one lawyer, is permitted to accompany each Local Commissioner during the execution of the Commission.
v. The Defendants shall cooperate with the Local Commissioners. vi. The copy of today's order along with complete paper book shall be handed over by the Local Commissioners to the Defendants at the time of execution of commission.
18. The fee of the Local Commissioners is fixed at Rs.1 lakh each excluding travel and other expenses. The fees and expenses of the Local Commissioners at sl. Nos 1 to 5 shall be borne by the Plaintiff and the fee and expenses of the local commissioners at sl. Nos 6 to 10 shall be borne by Defendant no.1. Both parties' representatives may be present during the execution of the Commissions at all locations. For the smooth conduct of the Commissions, Mr. Ankit Parashar & Ms. Anuja Chaudhary, Advocates (M: 8802310640) on behalf of the Plaintiff and Mr. Souradeep, Advocate (M:9872464015) on behalf of Defendant No.1 shall coordinate the execution of the Local Commissions.Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 8 of 9 By:DEVANSHU JOSHI
19. The Local Commissions shall be executed as per the convenience of all concerned, between 27th May, 2022 to 29th May, 2022. The Local Commissioners shall submit their report by Tuesday, i.e., 31st May, 2022.
20. The Local Commissioners shall further ensure that if the warehouses where they are visiting are third party warehouses, there is no disruption of the usual business in the said premises.
21. The Defendants may also produce a tabulated statement of the quantum of the impugned 21 designs and the stock thereof which has been manufactured and the monetary value of the same.
22. The next meeting of the parties with the ld. Mediator is scheduled to be held on 27th May, 2022 at 4:30 PM. The Delhi High Court Mediation and Conciliation Centre shall allot a proper room for the conduct of the mediation proceedings on 27th May, 2022.
23. Order dasti.
24. List on 2nd June, 2022.
PRATHIBA M. SINGH, J.
MAY 26, 2022/aman/SK Signature Not Verified Digitally Signed CS(COMM) 177/2022 & other connected matter Page 9 of 9 By:DEVANSHU JOSHI ANNEXURE A PRODUCTS OF THE PLAINTIFF AND DEFENDANT NO. 1 - CS(COMM) 177 OF 2022 S. No & Product of the Plaintiff Name of Product of Defendant No.1 Name of Defendant No.1's Plaintiff's product product (1) FIRST POPCORN-01 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (2) POPCORN-02 RIM Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (3) BOUNCER-01 BRAZIL PRO Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (4) VELOCITY-07 CESTER (5) RAFAEL-01 ROCKET Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (6) SUPERWALK-01 OXYFIT Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (7) PLASMA PRO OSLO PRO Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (8) OXYGEN-02 BALENO Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (9) TERMINATOR PLASMA-08 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (10) CENTURY-12 DOME (11) MISSILE-02 REE-FLECT Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (12) EVOK CAPTAIN-09 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (13) BOUNCER-12 BELGIUM Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (14) MISSILE-01 ARTEMIS Signature Not Verified Digitally Signed By:DEVANSHU JOSHI PRODUCTS OF THE PLAINTIFF AND DEFENDANT NO. 1 - CS(COMM) 362 OF 2022 Product of Product Product of the Product the Plaintiff Defendant No. 1 (15) EXPRESS-02 HURRICANE Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (16) TOKYO-02 CLAIRE Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (17) ASIAN PLASMA-
VACUM 05 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (18) THRILL (19) CASSIDY Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (20) BLADE-08 DIVINE Signature Not Verified Digitally Signed By:DEVANSHU JOSHI (21) WATERPROOF-08 WISDOM Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signature Not Verified Digitally Signed By:DEVANSHU JOSHI