Delhi High Court
M/S Bright Electricals vs Mr. Ramesh Kumar Patel on 3 September, 2009
Author: S.L. Bhayana
Bench: S.L. Bhayana
HIGH COURT OF DELHI: NEW DELHI
I.A. No. 14016/2008 in CS (OS) 267/2008
Date of Decision: September 03, 2009
M/S BRIGHT ELECTRICALS ... PLAINTIFF
Through: Mr. Ajay Amitabh Suman, Adv.
Versus
MR. RAMESH KUMAR PATEL ... DEFENDANT
Through: Mr. H.P. Singh with Ms. Geeta,
Mr. Navroop Singh and Mr. Sonal Joshi,
Advs.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest or
not? Yes
S.L. BHAYANA, J.
By this order, I propose to dispose of this application under Order VI Rule 17 of CPC, seeking amendment of the plaint.
2. The instant suit has been filed by the applicant/plaintiff for permanent injunction thereby claiming to restrain the defendants for passing off, infringement of trademark, copyright, damages etc. Plaintiff by way of this suit has claimed to be the user of trademark "GOLD MEDAL LABEL" since the year 1987.
3. By virtue of this applicant/ plaintiff is seeking amendment of plaint on the ground that the user claimed in the plaint as since the year 1987 is inadvertent mistake, in fact the plaintiff is using the said trademark since the year 1979-80.
4. Learned counsel of the applicant/ plaintiff argued that the mistake is apparent from the fact that the registered trademark I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 1 of 6 "GOLD MEDAL" under No. 449747 in class 9 was dated 17/2/1986, which is much prior to 1987.
5. The applicant/plaintiff has also filed relevant Trademark journal pages under No. 518258 in class 09 and 518259 in class 12, whereby the user of the trademark GOLDMEDAL was mentioned since the year 1/1/1980 along with this application.
6. To support this application learned counsel of the applicant/plaintiff has relied upon the following judgments:
a) Alberto Culver Company vs. Fashion stores & Anr., 2005(30) PTC 269 DEL
b) Lakha Ram Sharma vs. Balar Marketing Pvt. Ltd., 2003(2) CTMR 106(SC)
c) Jai Ram Manohar Lal vs. M/S. National Building Material Supply, AIR 1969 SC 1267
d) Prem Bakshi & Others vs. Dharam Dev & Others, AIR 2002 SC 559
7. On the other hand, on the behalf of the non-
applicant/defendants, it was argued that the amendment sought to be made in the plaint is not necessary for the purpose to determine the real question in controversy and nature of the suit.
8. Further learned counsel of the non applicant/defendants argued that proposed amendment is superfluous and inconsistent with the facts as pleaded by the plaintiff in the plaint and is only in the nature of wiping off admission made by the plaintiff as to the alleged use of trademark. If this is allowed it would have the effect of introducing a totally different and inconsistent new date of alleged use by the plaintiff of the trademark "GOLD MEDAL".
9. To support his arguments learned counsel of the defendants has placed reliance upon the following judgments: I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 2 of 6
a) Pfizer Inc vs. Pifer Pharmaceuticals Pvt. Ltd., 2007(34) PTC 660 (Del)
b) Modi Spinning & Weaving Mills Co. Ltd. and Anr. Vs. Ladha Ram & Co., AIR 1977 SC 680
c) Rasiklal Manikchand Dhariwal & Ors. Vs. Kishore Washwani & Nitesh Ashok Wadhwani, 2005(31) PTC 401 (Bom)
10. After hearing counsel of the parties, I am of the view that amendment claimed appeared to be relevant for adjudication of the matter in controversy and for finally resolving all the disputes between the parties relating to trademark infringement. It is also well settled that the dominant purpose of allowing amendment is to minimize the litigation. Moreover, no prejudice would cause to the defendants, if this application is allowed.
11. The suit is otherwise at a primary stage; issues have not been framed as yet. Moreover, it is well settled law that while considering such kind of application, duty of the court is not to weigh the merits of the matter.
12. Each case is to be decided on its own facts. In view of the peculiar facts of the present case, the judgment on which non- applicant/defendants are relying upon are not applicable to the facts of this case.
13. It would be appropriate to take note of legal precedents on this point, which are as under:
a) In M/S Estralla rubber vs. Dass Estate (Pvt) Ltd., AIR 2001 SC 3295,Apex court observed as under:
"It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side; normally a clear admission made I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 3 of 6 conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of plaintiff, depending on facts and circumstances of a given case. In certain situations a time barred claim cannot be allowed to be raised by proposing an amendment to take away valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side. This Court in recent judgment in B.K. Narayana Pillai vs. Parameswaran Pillai and another ,AIR2001SC3295 after referring to number of decisions, in para 3 has stated, thus:-
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation."
b) Recently in Puran Ram vs. Bhaguram & Anr, AIR 2008 SC 1960 Apex court observed as under:
" Before parting with this judgment, we may deal with the submission of the learned Counsel for the respondent that the application for amendment could not be allowed inasmuch as the same was barred by limitation. We are unable to accept this contention of the learned Counsel for the respondents. In this regard, we may observe that the court may, in its discretion, allow an application for amendment of the plaint even where the relief sought to be added by amendment is allegedly barred by limitation. This view was also expressed by this Court in Pankaja and Anr. v. Yellappa (Dead) by LRs. and Ors.I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 4 of 6
AIR2004SC4102. In that decision, it was held that there is no absolute rule that in such a case, the amendment should not be allowed and the discretion of the court in that regard depends on the facts and circumstances of the case and such discretion has to be exercised on a judicious evaluation thereof. It was further held in that decision that an amendment, which subserves the ultimate cause of justice and avoids further litigation, should be allowed. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the Court and amendment of the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon AIR1969SC1267 In paragraph 8 of the said decision this Court observed that "since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted." A reading of this observation would amply clear the position that no question of limitation shall arise when mis- description of the name of the original plaintiff or mis-description of the suit property arose in a particular case. Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted herein earlier, we do not find why the High Court should have interfered with the discretion used by the trial court in allowing the application for amendment of the plaint. "
14. In the light of what has been laid down by the Supreme Court and in view of the facts and circumstances of the present case, the present application for amendment of plaint is allowed. Accordingly, plaintiff is permitted to file an amended plaint within two weeks and be transferred to Part I file. The defendants may also file a written statement of the amended plaint within four weeks from the date a copy of amended plaint is served upon defendants.
I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 5 of 6
15. Accordingly, the application stands disposed of. CS (OS) 267/2008
16. List the suit on 29.10.2009 for framing of issues.
S.L. BHAYANA, J.
September 03, 2009 I.A. No. 14016/2008 in CS(OS) No. 267/2008 Page 6 of 6