Delhi District Court
Flakes And Ors vs Limerick Designs And Ors on 29 November, 2025
IN THE COURT OF SH. SANDEEP YADAV,
DISTRICT JUDGE (COMMERCIAL)-03, SOUTH,
SAKET COURTS, NEW DELHI
CS (Comm) 92/2020
CNR NO. : DLST01-001470-2020
Nanki Maggo Papneja
D-253, Sushant Lok-I
Gurugram-122 009
..... Plaintiff no. 1.
Abirr Papneja
D-253, Sushant Lok-I
Gururgam-122 009
..... Plaintiff no. 2.
M/s. Limrick Designs
H-16/6, 2nd Floor
Office No. 10, DLF Phase-I
Gurugram-122 002
Also at
N-18
N Block, Greater Kailash-I
New Delhi-11 0048
..... Plaintiff no. 3.
Versus
M/s. Mrs. Flakes
Oberoi Esquire Tower C, # 1101
Goregaon East
Mumbai-400 063
..... Defendant no.1.
CS (Comm) 92/2020
CS (Comm) 167/2020 1/45
Kanika Chadha (Kanika Atom)
Oberoi Esquire Tower C, # 1101
Goregaon East
Mumbai-400 063
..... Defendant no.2.
Aryan Sharma
Oberoi Esquire Tower C, # 1101
Goregaon East
Mumbai-400 063
..... Defendant no.3.
Abhijeet Sharma
Oberoi Esquire Tower C, # 1101
Goregaon East
Mumbai-400 063
..... Defendant no.4.
And
M/s. Mrs. Flakes
..... Plaintiff no.1.
Kanika Chadha
..... Plaintiff no.2.
Aryan Sharma
..... Plaintiff no.3.
Abhijeet Sharma
All resident of
1101, Esquire Tower C
Mumbai-400 063
CS (Comm) 92/2020
CS (Comm) 167/2020 2/45
..... Plaintiff no.4.
Versus
1. Limerick Designs
Through its partners
H-16/6, 2nd Floor
Office No. 10, DLF Phase 1
Gurugram- 122 002
Also at
N-18, N Block
Greater Kailash-1
New Delhi-110 048
..... Defendant no.1.
2. Nanki Maggo Papneja
D-253, Sushant Lok 1
Gurugram-122 009
..... Defendant no.2.
3. Abirr Papneja
D-253, Sushant Lok 1
Gurugram-122 009
..... Defendant no.3.
4. Sohiny Das ..... Defendant no.4.
5. Mohit Rai ..... Defendant no.5.
6. Shruti Wani ..... Defendant no.6.
7. Aditi Chauhan ..... Defendant no.7.
8. Mandeep Seeray ..... Defendant no.8.
CS (Comm) 92/2020
CS (Comm) 167/2020 3/45
9. Ingrained Design and Style
Consultancy Pvt. Ltd.
All above trading as Grain Fashion Consultancy
Address at : 1002, Wing B, RNA Continental
14th Road, Subhash Nagar Main Street
Chembur, Mumbai-400 071
..... Defendant no.9.
10. Janvi Ramesh Mankani ..... Defendant no.10.
11. Komal Jayesh Rukhana ..... Defendant no.11.
12. Mint & Milk Communications
..... Defendant no.12.
All above having address at:
601, Exclusive, Tagore Road
Santacruz (West)
Mumbai-400 054.
13. Aastha Sharma ..... Defendant no.13.
14. Wardrobist Consultancy Pvt. Ltd.
Both the above having their address at:
The Vogue, Vimal Kunj, Talmaki Road
RBI Staff Quarter, Potohar Nagar
Santacruz (West), Mumbai-400 054.
..... Defendant no.14.
Date of institution of suit : 10.02.2020/21.03.2020
Date of reserving judgment : 14.11.2025
Date of pronouncement : 29.11.2025
CS (Comm) 92/2020
CS (Comm) 167/2020 4/45
JUDGMENT
1. Commercial case bearing no. CS (Comm) 92/20 for declaration, permanent injunction, damages and other relief (s) and commercial case bearing no. CS (Comm) 167/20 for protection of copyright, specific performance of contract, damages, and other consequential relief (s) will be disposed of by this common judgment.
2. For the sake of convenience plaintiffs in case CS (Comm) No. 92/20 will be referred to as 'plaintiffs' while plaintiffs in CS (Comm) 167/20 will be referred to as 'defendants' in this judgment.
3. These two suits were consolidated vide order dated 22.12.2020 as these two cases are cross cases in which parties are common being represented through same Counsels and issues involved are common.
4. I have heard Mr. Sagar Chandra, ld. Counsel for plaintiffs as well as Mr. Ankit Yadav, ld. Counsel for defendants, at length and carefully considered the rival submissions. Written synopsis filed by both parties have also been gone through.
Plaintiffs' Case
5. Plaintiffs came to know about defendants through Google search while searching for entities which could print clothes as per plaintiffs' requirements and instructions. The search conducted by plaintiffs CS (Comm) 92/2020 CS (Comm) 167/2020 5/45 revealed that defendants are in the business of water marbling on fabric. Thereafter, plaintiffs got in touch with defendants through Instagram. After initial interaction and assurances of defendants that they had the ability to replicate pattern and will adhere to strict guidelines, plaintiffs sent sample of fabrics on 22.03.2019 alongwith 'mood board' and instructions to defendants so as enable the defendants to create swatches of print for approval of plaintiffs. Subsequent to reviewing the first lot of samples through electronic mode and subsequently physical on 30.03.2019, plaintiffs gave various inputs such as color and patterns which were required by plaintiffs. Subsequently, a meeting was held between parties in Mumbai wherein plaintiffs were handed over some of the swatches. Plaintiffs in the said meeting insisted on adherence to strict guidelines since plaintiffs were aiming to apply for various fashion shows. Defendants sent e-mail dated 07.04.2019 which recorded minutes of meeting held on 06.04.2019. Plaintiffs sent first full batch of fabrics to defendants on 08.04.2019 for water marbling printing. Vide e-mail dated 09.04.2019 plaintiffs sent detailed order file to defendant no. 2 which included different color combination and pattern for each cloth type which is referred to in the plaint as 'Order File'. The Order File contained detailed instructions as to the printing and use of color on each specific fabric that was sent to defendants.
6. Defendants could not perform the assigned job to the satisfaction of plaintiffs as the job work was completely different from the swatches provided by defendants, contrary to the claim of defendants that they are CS (Comm) 92/2020 CS (Comm) 167/2020 6/45 possessing the capability to replicate the pattern produced on swatches, in the job work. Plaintiffs were consulted at every stage of process of printing by defendants throughout the month of April 2019. Defendants showed various photographs of print for the purpose of comment/review and approval of plaintiffs. Defendants misrepresented that they can replicate the swatches on to larger pieces of clothes. However, defendants failed on that score while producing the job work. Despite not being satisfied with the performance of defendants with regard to first batch which was received on 23.04.2019, plaintiffs placed second order due to paucity of time on account of deadlines pertaining to fashion events. Second full batch of fabrics was sent to defendants on 25.04.2019 with similar instructions in Order File. Plaintiffs made complete payment to the tune of Rs. 1,77,840/- towards printed fabrics that were actually received by plaintiffs from defendants. On 11.07.2019 another batch was sent to defendants for printing alongwith detailed order file of instructions. Defendants stopped communicating with plaintiffs during the period 13.07.2019 to 25.07.2019 despite being made aware by plaintiffs about the requirement of strict deadlines. Plaintiffs were left with no option but to cancel the order due to non communication at the end of defendants. Accordingly, plaintiffs cancelled the order telephonically on 25.07.2019. Subsequently, plaintiffs printed small swatches using water marbling technique which could be created within the premises of plaintiffs using the same color palette and instructions as were provided to the defendants. These swatches were converted into digital marbling prints through a computer software by plaintiffs through CS (Comm) 92/2020 CS (Comm) 167/2020 7/45 their own skill, judgment and labor. These digital marbling prints contained new patterns and thus, plaintiffs are the authors and owners of copyright in the said digitally created patterns. Around the same time various e-mails were exchanged between the parties and in one of the e- mails dated 06.08.2019 sent by defendants, defendants claimed copyright in the prints prepared by defendants asking the plaintiffs not to reproduce the said prints in any form. The contention of defendants in e-mail dated 06.05.2019 were denied by plaintiffs vide e-mail dated 13.08.2019.
7. It is the contention of plaintiffs that no copyright can exist in print created through water marbling technique as same cannot be controlled by human intervention. Once plaintiffs paid a valuable consideration against the job work done by the defendants on fabric provided by plaintiffs, defendants cannot claim any right over the job work. The terms contained in e-mail dated 07.04.2019 are invalid as same were based on misrepresentation of defendants that they have the ability to replicate the patterns created using water marbling technique. Thereafter, plaintiffs chose to release the collection that was created by plaintiffs with digital marbling prints for sale on 17.12.2019. For exhibitions and shoots, plaintiffs opted to use both kinds of prints i.e. prints sourced from defendants and digital marbling prints created by plaintiffs.
8. On 13.12.2019 plaintiffs, received legal notice from defendants alleging infringement of Intellectual Property Rights of Defendants. As per averments of said notice, the patterns created by water marbling CS (Comm) 92/2020 CS (Comm) 167/2020 8/45 technique cannot be replicated. Subsequently plaintiffs also came to know that defendants sent messages over Instagram to various celebrities and influencers claiming that the dresses of plaintiffs sent to the celebrities and influencers are the creation of defendants which negatively impacted the reputation of plaintiffs in the community. Criminal complaints were also initiated by plaintiffs and defendants against each other. Plaintiffs thereafter sent ceased and desist notice to defendants asking them not to circulate defamatory messages and subsequently, sent reply to legal notice dated 13.12.2019.
9. Plaintiffs claimed themselves to be the authors and owners of copyright in new patterns created by plaintiffs in digital marbling print by their own skill, labour, judgment and reproduction of same does not amount to infringement of copyright of plaintiffs. Defendants have no copyright in the job work produced through water marbling technique as marbling technique is nothing but a method by which paint or inks are dropped onto the surface of a water bath and then transferred to another surface such as paper and fabric. No one can claim any right over the marbling technique or result of such technique since the same does not involve any creativity, skill or labour. Besides, new pattern digitally created by plaintiffs are not even a substantial reproduction of prints that were provided by defendants to plaintiffs for job work.
10. Against this factual background, plaintiffs prayed in the suit as under :-
CS (Comm) 92/2020 CS (Comm) 167/2020 9/45 a. A decree towards Declaration that Plaintiff No. 1 is the owner of Copyright in the Digital Marbling Prints created by her;
b. A decree towards Declaration that no Copyright can exists in any print/pattern produced merely through Water Marbling Technique;
c. A decree towards Declaration that Defendant No. 1 or any of the Defendants in fact do not own any Copyright or any other legal right over the job work done by the Defendants pursuant to the detailed instructions of the Plaintiffs;
d. A decree towards Declaration that the alleged infringement claimed by the Defendants through legal notice dated 13th December, 2019 and rejoinder notice dated 16th January, 2020 was not in fact infringement of any alleged Copyright or any other legal right of the Defendant No. 1/Defendants including author's special rights;
e. A decree for permanent injunction restraining the Defendants, its proprietors, partners, if any, officers, servants, agents, distributors and representatives and all those acting for and on behalf of the Defendants from interfering with the business of the Plaintiffs and exercise of Copyright of the Plaintiff No. 1 as declared in prayer para 60 a;
f. A decree for permanent injunction restraining the Defendants, its partners, if any, officers, servants, agents, distributors and representatives and all those acting for and on behalf of the Defendants from claiming before any third party that the Copyright over the job work produced by the Defendants using Water Marbling Technique at the instructions of the Plaintiffs, belongs to the Defendants;
CS (Comm) 92/2020 CS (Comm) 167/2020 10/45 g. A decree for permanent injunction restraining the Defendants, its partners, if any, officers, servants, agents, distributors and representatives and all those acting for and on behalf of the Defendants from claiming before any third party that the Plaintiffs have infringed their Copyright;
h. A decree for permanent injunction restraining the Defendants, its partners, if any, officers, servants, agents, distributors and representatives and all those acting for and on behalf of the Defendants from issuing or continuing with any threats of any legal proceedings to the Plaintiffs in any manner whatsoever;
i. A decree of damages as valued for the purposes of this plaint as a consequence of activities of the Defendants or as may be determined by this Court in its discretion in favor of the Plaintiffs and against the Defendants.
Defendants' case
11. Case of defendants as can be seen from the written statement in CS (Comm) 92/20 and in the plaint CS (Comm) 167/20 may be briefly noted as under :-
12. Defendants being the artists set up an account on social media including Facebook and Instagram in 2019 and held workshops where participants can experience water marbled artistic work created for their personal use. Defendants were approached by plaintiffs on or about 19.03.2019 expressing interest in artistic work of defendants. On the CS (Comm) 92/2020 CS (Comm) 167/2020 11/45 request of plaintiffs, defendants created eight artistic work and furnished the same to plaintiffs between 30.03.2019 and 06.04.2019 without being paid for samples. Plaintiffs were not charged for artistic work created by defendants with specific understanding that artistic work are of defendants and samples will be returned intact to defendants. Reference is made in the plaint of CS (Comm) 167/20 to the meeting held between parties on 06.04.2019 and e-mail dated 07.04.2019 wherein plaintiffs are inter alia stated to have undertaken not to replicate any design in any form or print on fabrics or any other material unless licensing agreement is executed.
13. Plaintiffs dispatched the fabrics for water marbling on 08.04.2019 before informing the defendants. On being told by defendants that samples provided by plaintiffs do not appear like water marbled artistic work, plaintiffs decided to go with their theme and further decided to go with original artistic work to be created by defendants. Despite repeated requests of defendants, plaintiffs failed to return all samples and ultimately plaintiffs created 17 artistic work, transferred them on fabrics brought by defendants and furnished them as samples to plaintiffs for the second order. Plaintiffs again placed an order on defendants on 25.04.2019 which contained merely photographs of samples furnished by defendants in March 2019. The order was delivered on 03.05.2019 as desired by plaintiffs without receiving advance payment or remaining 50 % from plaintiffs in respect of first order. Plaintiffs placed third order on 11.07.2019 for 31 meters of fabrics which was ultimately cancelled by CS (Comm) 92/2020 CS (Comm) 167/2020 12/45 plaintiffs citing defendants' inability to deliver the finished products in agreed time limit.
14. Shortly thereafter, from September 2019 to December 2019 in breach of agreement between parties, plaintiffs began infringing copyright of defendants in their artistic work. Defendants issued notice on 13.12.2019 to plaintiffs to cease and desist from infringing defendants' copyright. Defendants also took steps to inform celebrities and other persons receiving goods from plaintiffs that same are created from the artistic work of defendants. Plaintiffs are still advertising and selling goods made using the artistic work of defendants. Defendants contended that they are the owners and authors of the artistic works created by them using water marbling technique whether at the request of plaintiffs or otherwise. It is further contended that plaintiffs cannot replicate the artistic work of defendants in any form or print the same on any fabric or other material except with the permission of defendants. Defendants claimed to be the owner of copyright and other rights over the artistic works created by them. Plaintiffs by breach of contract between parties, have caused damage, loss of business as well as loss of expected income of defendants. Defendants prayed in the suit as under :
a. Pass a decree and order declaring that the agreement reached between the parties on 6th April, 2019 as recorded in the e-mails dated 7th and 9th April, 2019 is valid, subsisting and binding on the Defendants;
b. Pass a decree and order declaring that the Plaintiffs are the authors and owners of the artistic works created by them in the samples CS (Comm) 92/2020 CS (Comm) 167/2020 13/45 furnished to the Defendants as well as artistic works created by them in terms of the agreement reached between the parties on 6th April, 2019 as recorded in the e- mails dated 7th and 9th April, 2019;
c. Pass a decree and order of specific performance against the Defendants themselves, their directors, servants, agents, franchisees, dealers, curators, distributors and all other persons claiming under them, directing them to perform the terms of the agreement reached between the parties on 6th April, 2019 as recorded in the e-mails dated 7th and 9th April, 2019 strictly and specifically;
d. Pass a decree and order of injunction restraining the Defendants themselves, their directors, servants, agents, franchisees, dealers, curators, distributors and all other persons claiming under them from, in any manner whatsoever, infringing the copyrights and other rights in the artistic works created by them in the samples furnished to the Defendants as well as artistic works created by them in terms of the agreement reached between the parties on 6th April, 2019 as recorded in the e-mails dated 7th and 9th April, 2019;
e. Pass a decree and order of injunction restraining the defendants themselves, their directors, servants, agents, franchisees, dealers, curators, distributors and all other persons claiming under them from, in any manner acting in breach of the terms of the agreement reached between the parties on 6th April, 2019 as recorded in the e-mails dated 7th and 9th April, 2019;
CS (Comm) 92/2020 CS (Comm) 167/2020 14/45 f. Pass a decree and order of injunction restraining the Defendants themselves, their directors, servants, agents, franchisees, dealers, curators, distributors and all other persons claiming under them from, in any manner whatsoever, replicating any of the artistic works created by the Plaintiffs in the samples furnished to the Defendants as well as artistic works created by them in terms of the agreement reached between the parties on 6th April, 2019 as recorded in the e-mails dated 7th and 9th April, 2019;
g. Pass a decree of damages and compensation for breach of contract, infringement of copyright, loss of business and loss of income, presently valued at Rs. 20,00,000/-;
h. Pass an order appointing such fit and proper person as this Court may deem fit and proper as Receiver with all power under Order XL Rule 1 and Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 to attend and search the offices and / or premises and / or warehouses and / or factories and / or sites and / or the premises of any contractor, sub- contractor, agent, licensee, etc. (including on Court holidays and vacations) of the Defendants and to make an inventory, seize and take possession / custody products manufactured in breach of the agreement between the parties and the copyrights and other rights of the Plaintiffs, and the Defendants, their proprietor, partners, officers, directors, owners, employees, manufacturers, representatives, licensees and agents be ordered and directed to deliver up all of the aforesaid to the Receiver or to such other fit and proper person as this Court thinks fit. It is further submitted that the Court Receiver ought to be entitled to avail of police CS (Comm) 92/2020 CS (Comm) 167/2020 15/45 protection or assistance (if required), in carrying out the orders of this Court. It is further submitted that the Court Receiver be entitled to break open any locks at the premises of the Defendants at any time for the purpose of implementing the orders of this Hon'ble Court as sought hereinabove;
(i) Pass interim and ad interim orders in terms of prayers (d), (e), (f) and
(h) above.
15. The Court culled out the following facts in-issue/points for determination from the pleadings vide order dated 22.12.2020:-
1). Whether any copy right can exist in any prints/pattern produced merely through water marbling technique? OPP (Limerick).
2). Whether the defendants (Mrs. Flakes) have any copyright or any of the legal right over the prints/pattern through water marbling technique, the work carried out by them on instructions from the plaintiff ((Limerick))? OPD (Mrs. Flakes).
3). Whether the defendants (Mrs. Flakes) misrepresented to the plaintiffs (Limerick) that the defendants (Mrs. Flakes) could identically reproduce the prints/pattern prepared as per plaintiffs' (Limerick) instructions through water marbling technique by whatsapp dated 22.03.2019 and email dated 07.04.2019? If so, to what effect? OPP (Limerick).
4). Whether the plaintiff (Limerick) has breached the agreement recorded vide emails dated 07.04.2019 and 09.04.2019 between the CS (Comm) 92/2020 CS (Comm) 167/2020 16/45 parties by reproducing the artistic works created by the defendants (Mrs. Flakes)? OPD.
5). Whether the digital marbling prints created by the plaintiff (Limerick) are not similar to the prints/patterns printed through the water marbling technique by the defendants (Mrs. Flakes)? If so, to what effect? OPP.
6). Whether the suit filed by the plaintiffs (Limerick) is maintainable in view of Section 60 of the Copyright Act? OPD.
7). Whether defendant no. 4 to 13 in suit no. 167/2020 are necessary and proper party? OPP.
8). Whether the plaintiffs (Limerick in suit no. 92/2020) are entitled to the relief of declaration and injunction as sought? OPP.
9). Whether the plaintiff (Mrs. Flakes in suit no. 167/2020) is entitled to the relief of declaration and injunction as sought? OPP.
10). Whether in suit no. 167/2020, defendants no. 1 to 3 (Limerick) are required to specifically perform the contract recorded in e- mail dated 7.4.2019 and 9.4.2019 i.e. to not reproduce the artistic work of plaintiffs' (Mrs. Flakes) without a licence from the plaintiffs (Mrs. Flakes)?
11). Whether plaintiff (Limerick) is entitled to any damages? OPP.
12). Whether defendant (Mrs. Flakes) is entitled to any damages? OPD.
13). Relief.
CS (Comm) 92/2020 CS (Comm) 167/2020 17/45
16. On the same day, ld. Counsels appearing for both parties submitted that no oral evidence is required to be adduced by parties and that facts in-issue are based on documents and legal position. It was jointly submitted by ld. Counsels for both parties that both suits can be disposed of by way of summary judgment on the basis of oral submissions and pleadings on record regarding which there is no dispute in terms of affidavits of admissions denial of documents. Both parties were required to file their issue wise written submissions. Accordingly, both parties filed their written submissions.
17. Issue wise findings of Court is as under :-
18. Issue no.1 - Whether any copy right can exist in any prints/pattern produced merely through water marbling technique? OPP (Limerick).
19. It is more or less agreed between the parties that water marbling technique involves creation of artistic work on the surface of standing water which is then transferred to the surface to print on it as a fabric. As discussed above, case of plaintiffs is that water marbling printing is an age old technique which cannot be appropriated by anyone. According to plaintiffs no copyright can be claimed in the process of water marbling as it is a well known art form. On the other hand, it was canvassed on behalf of defendants that copyright can indeed subsist in print and pattern produced through water marbling technique as same are not mere mechanical accident but the result of author's creative choice and skill in CS (Comm) 92/2020 CS (Comm) 167/2020 18/45 manipulating medium. Defendants in written submissions also referred to an attempt made by plaintiffs to register print and pattern produced through water marbling technique claiming to their own creation under copyright laws. It is also not in dispute that water marbling is a process or idea which cannot be appropriated or monopolize by anyone. Reference can be made to judgment given in Mattel, INC & Ors.Vs. Jayant Agarwalla & Ors 2008 (38) PTC 416 Del. As per the agreement between the parties recorded in the email dated 07.04.2019, the designs of defendant would not be replicated by the plaintiff in any form or be printed on a fabric or any other materials unless the defendants have entered into a licensing deal of the print.
20. Defendants are claiming copyright over prints/patterns produced through water marbling technique contending that these prints/patterns are expression of idea over water marbling technique and defendants can always claim copyright therein. Holding that copyright can exist in prints/patterns produced through water marbling technique will have effect of giving monopoly or exclusive right over technique itself. Defendants' prints/patterns/designs produced using water marbling technique are intrinsically connected with and not separable from the technique itself. Any person of average intelligence who has some idea of water marbling technique will just by looking at the prints/patterns produced through water marbling technique, will form an opinion that same is based on water marbling technique implying that expression prints/patterns are connected with the idea i.e. water marbling technique.
CS (Comm) 92/2020 CS (Comm) 167/2020 19/45 Applying the doctrine of merger as discussed in Mattel, INC & Ors.Vs. Jayant Agarwalla & Ors 2008 (38) PTC 416 Del, it can safely be concluded that no-one can claim copyright in any prints/patterns produced through water marbling technique.
21. Defendants have themselves stated that in legal notice sent by defendants to plaintiffs that beauty and originality of the artistic works created by water marbling technique is that same artistic work is not in a position to be created again with same technique. Further, in whatsapp/insatgram communication exchanged between parties, defendants conveyed that water marbling printing which involves lots of trial and error on the part of defendants and that same patterns are very unpredictable & tricky to repeat. Some of these Whatsapp conversions which are admitted by defendants in affidavit of admission denial of documents are being re-produced herein as under :-
22. Plaintiffs' messages are shown in green whereas defendants' messages are shown in white color.
Yes 1:05 PM ✓✓ I'll call 1:05 PM ✓✓ CS (Comm) 92/2020 CS (Comm) 167/2020 20/45 Maximum length is 2.5 metres?
2:28 PM ✓✓ can it be more?
2:28 PM ✓✓ like 3?
2:28 PM ✓✓ To make placements like this I need to be there to tell you where to make it lighter and where to make it darker and where to marble in which direction! 7:21 PM ✓✓ Kanika Atom This is basically going to be a lot of trial and error for us too. We have discussed it and find it best to do these fabrics in private, you are welcome to join when we have a public studio space. There is a lot going on right now for us so the marbling will be done in a very tight schedule.
As the designs are made, I'll send you the pictures of the design on paper and you can send back your suggestions. 7:33 PM 7:37 PM CS (Comm) 92/2020 CS (Comm) 167/2020 21/45 😟 yeah.. but u think on a bigger tray we can get a pattern close to the one we want?
6:09 PM the waves are quite big 6:10 PM Kanika Atom I tried this on the big and small both, this pattern is very unpredictable and tricky to repeat. I wouldn't recommend this is you're looking to have fabric marbled.
6:10 PM ouch 6:10 PM let me think and get back to you on this one 6:11 PM Kanika Atom Sounds good, look at the one I have done- those lines/ patterned are still doable. But rather than straight lines, you will get some CS (Comm) 92/2020 CS (Comm) 167/2020 22/45 "U"s here and there as you can see from the picture. 6:12 PM give me sometime for this also 6:15 PM Kanika Atom Have a look at them, let me know what changes in color/ patterns you want and we can work on that from there.
6:16 PM sounds great 6:16 PM 4/17/2019 The pattern looks nice we just need to use tones of grey and black like in the original.
I'll need to see a swatch in this one before we go ahead on the final fabric.9:22 AM
23. From the tone and tenor of above whatsapp conversions and stand taken by defendants in the legal notice, it is clear that defendants have no clear control over the patterns/prints developed by using water marbling technique which are more of a result of natural process than judgment, skill or labour of a person claiming copyright therein.
CS (Comm) 92/2020 CS (Comm) 167/2020 23/45
24. In Large Society of Upper Canada Vs. CCH Canadian Limited, 2004 SCC Online Can SC 13, it was held that an original work must be protected by authors exercise of skill and judgment. Exercising skill and judgment required to produce work must not be so trivial that it can be characterized as a purely mechanical exercise. While creative works will by definition be 'original' and covered by copyright, creativity is not required to make a work 'original'.
25. In the present case also skill and judgment applied by defendants in producing prints/pattern is so insignificant that it cannot be characterized as original artistic work.
26. Coming to the applications filed by plaintiffs for registration of their copyright, it is clear from a mere look at these applications that these applications were filed for registration of copyright in digital marbling printing and not in water marbling printing. Therefore, the contention of defendants that plaintiffs are taking contradictory stands before different forums is liable to be rejected.
27. From the above discussion it is clear that no-one can claim copyright in printing/pattern produced merely through water marbling technique. Accordingly, issue no. 1 is decided in favour of plaintiffs and against defendants.
CS (Comm) 92/2020 CS (Comm) 167/2020 24/45
28. Issue no.2 - Whether the defendants (Mrs. Flakes) have any copyright or any of the legal right over the prints/pattern through water marbling technique, the work carried out by them on instructions from the plaintiff ((Limerick))? OPD (Mrs. Flakes).
29. Finding given while deciding issue no. 1 will cover issue no. 2 also. Once it is held that no copyright can exist in any prints/pattern produced through water marbling technique, the obvious conclusion is that defendants cannot claim any copyright over such prints/patterns. Defendants have not claimed any legal right other than copyright in prints/patterns produced through water marbling technique. Even otherwise, defendants in order to claim copyright or other legal rights in prints/patterns produced through water marbling technique are heavily relying upon agreement between the parties recorded in E-mail dated 07.04.2019. First of all, copyright flows from Copyrights Act and no right outside the Act can be claimed.
30. In Time Warner Entertainment Company, L.P & Ors. Vs. RPG Netcom & Ors. 2007 (34) PTC 668 (Del) it was held as under :-
" Section 13 of the Act stipulates that right to claim copyright is subject to the provisions of the said Section and the other provisions of the Act and does not exist de hors and outside the Act. It is the right created under the statute and no right outside the said Act can be claimed."
CS (Comm) 92/2020 CS (Comm) 167/2020 25/45
31. Secondly, the agreement recorded in e-mail dated 07.04.2019 is voidable as will be discussed in the later part of this judgment.
32. Mr. Ankit Yadav, ld. Counsel for defendants, relied upon Cryogas Equipment Pvt.Ltd. Vs. Inox India Limited & Ors., 2025 SCC Online SC
780. In this case Hon'ble Supreme Court referred to the judgment given in Microfibers INC Vs. Girdhar & Co., 2009 SCC Online Del. wherein it was held that protection granted to a work which is commercial in nature is lesser than and not to be equated with protection granted to a work of pure art. It is not the case of defendants that designs/patterns developed by them are the work of pure art. Rather, the work of defendants are commercial in nature as same were prepared at the instance of plaintiffs for consideration. Therefore, this judgment does not advance the case of defendants.
33. Mr. Ankit Yadav, ld. Counsel for defendants, also relied upon Rajesh Masrani Vs. Tahiliani Designs Pvt. Ltd., 2008 SCC Online Del 1283. In this case plaintiff's work was held to be entitled to protection under Section 2 (c) of Copyrights Act and was further held to be the original artistic work. Since, in the present case defendants' work cannot be termed as original artistic work and hence, this judgment is distinguishable on facts.
CS (Comm) 92/2020 CS (Comm) 167/2020 26/45
34. Mr. Ankit Yadav, ld. Counsel for defendants, also relied upon Mody Pumps Inc & Anr. Vs. Sovereign Pumping Solutions Pvt/ Ltd. & Anr., 2022 SCC Online Bom 10235. In this case it was held as under :-
"In law what is required to be seen is whether there is originality in the expression of an idea. The term "original work" does not mean or include an expression of original or inventive thought. Since the Copyright Act is not concerned with originality of ideas but with the expression of thoughts, the work in which copyright is claimed must originate from the author."
35. The question as to whether the prints/ patterns produced by the defendants originated from the defendants is not required to be decided in the present case, once it is held that no one can claim copyright in the artistic work produced through water marbling technique. For this reason, the judgment given in Mody Pump Inc. Anr. (supra) will not help the case of the defendants.
36. Accordingly, issue no. 2 is decided against defendants and in favour of plaintiffs.
37. Issue no. 3 - Whether the defendants (Mrs. Flakes) misrepresented to the plaintiffs (Limerick) that the defendants (Mrs. Flakes) could identically reproduce the prints/pattern prepared as per plaintiffs' (Limerick) instructions through water marbling technique by whatsapp dated 22.03.2019 and email dated 07.04.2019? If so, to what effect? OPP (Limerick).
CS (Comm) 92/2020 CS (Comm) 167/2020 27/45
38. Plaintiffs have alleged that defendants' misrepresented to them that defendants can identically reproduce the prints/pattern through water marbling technique. Plaintiffs in this regard relied upon whatsapp/instagram messages as well as e-mails exchanged between the parties. On the other hand, defendants have taken categorical stand that they never assured the exact identical reproduction of marble design and any such statement ought to be construed in light of nature of artistic expression. Defendants also referred to the admission stated to have been made by plaintiffs themselves that exact reproduction was neither desired nor expected. It was also canvassed on behalf of defendants that plaintiffs were fully aware through prior dealings and communications that marbling is a manual artistic process and having expected the previous consignment with inherent variations cannot allege that they were was misrepresentation on the part of defendants.
39. In the whatsapp/instagram conversation dated 22.03.2019 reproduced at page 118 of documents filed by plaintiffs which is not disputed, defendants specifically conveyed and promised to the plaintiffs that all designs sent by plaintiffs can be replicated without any issue. In another Whatsapp/instagram conversation of same date i.e. 22.03.2019, defendants communicated to plaintiffs that they will be able to match identically. However, in the subsequent communication dated 08.04.2019, defendants conveyed to plaintiffs that technique involves a lot of trial and error. In another communication defendants specifically CS (Comm) 92/2020 CS (Comm) 167/2020 28/45 stated that pattern desired by plaintiffs is very unpredictable and tricky to repeat.
40. It is, therefore, evident that defendants first assured and promised the plaintiffs that they can identically reproduce the prints/patterns and subsequently expressed their inability to reproduce the designs furnished by plaintiffs to defendants. Thus, defendants misrepresented to the plaintiffs that defendants can identically reproduce the prints/patterns prepared as per plaintiffs' instructions through water marbling technique.
41. The word 'misrepresentation' being used in issue no. 3 is not to be read as representation within the meaning of Section 18 of Indian Contract Act. Here the word 'misrepresentation' would mean active concealment of fact or promise made without any intention of performing it and would amount to 'Fraud' as defined under Section 17 of Indian Contract Act. It is clear from various whatsapp/instagram conversations exchanged between the parties that defendants made promise to plaintiffs that defendants can identically reproduce the prints/patterns as per plaintiffs' instructions through water marbling technique knowing fully well that same cannot be done.
42. The effect of misrepresentation on the part of defendants which attracts Section 17 of Indian Contract Act will be that contract between parties becomes voidable at the option of plaintiffs. Defendants in written submissions have taken a defence that plaintiffs were fully aware through CS (Comm) 92/2020 CS (Comm) 167/2020 29/45 previous dealings between parties that marbling is a manual artistic process and hence, plaintiffs cannot contend that they were misled. First of all, as per documents placed on record, there was no dealings between parties prior to 22.03.2019. Therefore, plaintiffs had no means to discover the truth with ordinary diligence. Besides, exception to Section 19 of Indian Contract Act is applicable when consent of a party to the agreement was caused by misrepresentation or silence, fraudulent within the meaning of Section 17 of Indian Contract Act.
43. As discussed above, in the present case plaintiffs consented to the agreement between the parties on the basis of promise made by defendants about re-production of designs/patterns without any intention of doing the same which is covered by Section 17 (3) of Indian Contract Act. Hence, second exception to Section 19 of Indian Contract Act will not be attracted to the facts of present case. Accordingly, issue no. 3 is decided in favour of plaintiffs and against defendants.
44. Issue no. 4 - Whether the plaintiff (Limerick) has breached the agreement recorded vide emails dated 07.04.2019 and 09.04.2019 between the parties by reproducing the artistic works created by the defendants (Mrs. Flakes)? OPD.
45. Once it is held that agreement recorded between parties vide e- mail dated 07.04.2019 & 09.04.2019 is voidable in view of provisions contained in Section 17 of Indian Contract Act, no finding is required to CS (Comm) 92/2020 CS (Comm) 167/2020 30/45 be given on the issue as to whether said agreement has been breached by plaintiffs by reproducing artistic works created by defendants. Even otherwise, artistic works referred to in issue no. 4 were created by defendants on the instructions of plaintiffs for consideration and same can be termed as job work. The fact that work assigned by plaintiffs to defendants amounted to job work is established by whatsapp/instragram messages exchanged between the parties whose prints have been placed on record by plaintiffs at page no. 116,117,118,121,122 as well as e-mails dated 09.04.2019 & 25.04.2019.
46. In pursuance of orders placed by plaintiffs, defendants raised invoices of different amounts and plaintiffs have also placed on record statement of account showing payment of amount on account of job work carried out by defendants to defendants. Thus, the factual position is that plaintiffs placed certain orders with defendants to create designs/patterns for plaintiffs. Defendants created designs/patterns in pursuance of job work given to them by plaintiffs and raised invoices. Consideration for job work was paid by plaintiffs to defendants. Once these crucial facts are established, Section 17 (b) of Copyright Act 1957 gets triggered whereunder it is provided that subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
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47. The patterns/designs produced by defendants for plaintiffs can be termed as painting as Section 2 (c) of Copyright Act defines 'artistic work' as a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality.
48. As discussed above, prints/patterns were produced by defendants in the present case for valuable consideration at the instance of plaintiffs and thus plaintiffs shall become the first owner of copyright in designs/patters as per Section 17 (b) of Copyright Act.
49. Mr. Ankit Yadav, ld. Counsel for defendants, submitted that Section 17 (b) of Copyrights Act creates an exception in case of agreement to contrary. Ld. Counsel for defendants submitted that the agreement contained in e-mail dated 07.04.2019 which required plaintiffs not to replicate designs of defendants in any form or be printed on a fabric or any other material unless defendants have entered into licencing deed of prints is the agreement to contrary as mentioned in Section 17 (b).
50. The Court is in respectful disagreement with the above interpretation of Section 17 (c) of Copyrights Act given by Mr. Ankit Yadav. The words 'agreement to contrary' occurring in Section 17 (b) of Copyrights Act referred to assignment of copyright as per Section 18 of Copyrights Act. The mode of assignment of copyright is prescribed under Section 19 of Copyrights Act which provides that no assignment of the CS (Comm) 92/2020 CS (Comm) 167/2020 32/45 copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent. The agreement contained in e- mail dated 07.04.2019 was not reduced into writing by parties nor was signed by concerned parties. Therefore, the agreement referred to in the e- mail dated 07.04.2019 cannot be said to be a agreement to contrary within the purview of Section 17 (b) of Copyrights Act.
51. Further, rights claimed by defendants relying on agreement reflected in e-mail dated 07.04.2019 is at par with the copyright which is not permissible under law as copyright is a statutory right created under Copyrights Act and no right outside the Copyrights Act can be claimed. It was so held in Times Warner Entertainment LP & Ors. (supra)
52. Accordingly, issue no. 4 is decided against defendants and in favour of plaintiffs.
53. Issue no. 5 - Whether the digital marbling prints created by the plaintiff (Limerick) are not similar to the prints/patterns printed through the water marbling technique by the defendants (Mrs. Flakes)? If so, to what effect? OPP.
54. In view of findings given by the Court while deciding issue no. 1 to the effect that no-one can claim copyright in any print/pattern developed through water marbling technique, issue no. 5 does not survive and has become inconsequential. Even if the Court was to decide that CS (Comm) 92/2020 CS (Comm) 167/2020 33/45 prints of plaintiffs and defendants are similar, same will not have any consequence. Issue no. 5 is decided accordingly.
55. Issue no. 6 - Whether the suit filed by the plaintiffs (Limerick) is maintainable in view of Section 60 of the Copyright Act? OPD.
56. Since the burden of proof of this issue has been cast on defendants, in the considered opinion of the Court the word 'not' must be added before the word 'maintainable' in the above mentioned issue and the correct issue will be - "Whether the suit filed by the plaintiffs (Limerick) is 'not' maintainable in view of Section 60 of the Copyright Act? OPD.
57. Section 60 of Copyrights Act provides as under :-
Where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of the copyright any person aggrieved thereby may, notwithstanding anything contained [in section 34 of the Specific Relief Act, 1963 (47 of 1963)], institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit--
(a) obtain an injunction against the continuance of such threats;
and CS (Comm) 92/2020 CS (Comm) 167/2020 34/45
(b) recover such damages, if any, as he has sustained by reason of such threats:
Provided that this section does not apply if the person making such threats, with due diligence, commences and prosecutes an action for infringement of the copyright claimed by him.
58. Defendants in the written submissions have not indicated any action initiated by defendants for infringement of copyright claimed by defendants prior to the filing of suit [CS (Comm) No. 92/2020 instituted by plaintiffs]. Defendants in the written submissions averred that they have filed CS (Comm) No. 167/2020 for civil action ascertaining infringement and seeking relief (s) in accordance with law. Subsequent action produced by defendants for infringement of their copyright will not fulfill the requirement of Section 60 of Copyrights Act so as to make the present suit not maintainable. Reference in this regard can also be made to Dhiraj Dharamdas Dewani Vs. Sonal Info Systems Pvt. Ltd. & Ors. 2012 (52) PTC 458 (Bom).
59. Defendants are also stated to have lodged a complaint against plaintiffs on 07.01.2020 for copyright violation against plaintiffs and other persons regarding copyright violation, etc. Defendants prayed in the application that the complaint be treated as FIR and investigation be made in respect of investigation against persons arrayed as accused in the complaint. The said complaint cannot be treated as an action for infringement of copyright claimed by defendants within the meaning of CS (Comm) 92/2020 CS (Comm) 167/2020 35/45 proviso to Section 60 of Copyrights Act. Hence, it is concluded that the suit filed by plaintiffs is maintainable and issue no. 6 is accordingly decided against defendants and in favour of plaintiffs.
60. Issue no. 7 - Whether defendant no. 4 to 13 in suit no. 167/2020 are necessary and proper party? OPP.
61. The contention of plaintiffs that defendant no. 4 to 13 in suit bearing CS (Comm) No. 167/2020 are not necessary and proper party was never contested by defendants. Even otherwise, from bare perusal of plaint of CS (Comm) No. 167/2020 it transpired that there is no allegation against defendant no. 4 to 13 and no prayer have been sought against the defendants. As per written submissions filed on behalf of plaintiffs, defendant no. 4 to 13 are strangers to the controversy between plaintiffs and defendants. Defendants in the written submissions have not specified the exact role or liability of defendant no. 4 to 13. It is only mentioned in the written submissions that defendant no.4 to 13 have indulged in selling, offering for sale, marketing and or advertising the infringed products of defendants. These are general allegations which will not persuade the Court to come to the conclusion that defendant no. 4 to 13 are necessary parties. It is also mentioned in the written submissions filed by defendants that defendant no. 4 to 13 by failing to file written statement have forfeited their statutory right to contest the averments of plaint in CS (Comm) No. 167/2020. Defendants (who are plaintiffs in CS (Comm) No. 167/2020) CS (Comm) 92/2020 CS (Comm) 167/2020 36/45 have to stand on their own legs and cannot rely on failure of opposite party therein to file written statement.
62. In view of above discussion it is held that defendant no. 4 to 13 in CS (Comm) No. 167/2020 are not necessary and property parties. Accordingly, issue no. 7 is decided against defendants and in favour of plaintiffs.
63. Issue no. 8 - Whether the plaintiffs (Limerick in suit no. 92/2020) are entitled to the relief of declaration and injunction as sought? OPP.
64. It is an admitted position that plaintiffs filed two applications before the concerned authority for registration of their digitally marbled prints which were withdrawn by them. Plaintiffs have not come up with any plausible reason for withdrawal of those applications which warrants an inference that plaintiffs cannot claim to be the owner of copyright in digitally marbled prints. Even otherwise, plaintiffs cannot claim ownership of copyright in digitally marbled prints because prints which are prepared digitally will require some electronic device and cannot be termed as the result of intelligence, judgment and labor of plaintiffs. Further, the said digital prints can also be prepared by other person using same digital platform and no-one can claim copyright in the same. Accordingly, it is held that plaintiffs are not entitled to decree of declaration as prayed for in Clause 60 (a) of plaint in CS (Comm) No. 92/20.
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65. Sofar as the prayer of declaration sought for in Clause 60 (b), (c) and (d), same deserve to be granted in view of findings of Court given on issue no. 1 & 2.
66. Accordingly, it is held that plaintiffs are entitled to decree of declaration in terms of prayer 60 (b) (c) & (d) in CS (Comm) No. 92/20.
67. Decree of permanent injunction as prayed for in Clause 60 (e) in CS (Comm) No. 92/20 cannot be granted as it has already been held that plaintiffs cannot claim to be the owner of copyright in digitally marbled prints.
68. Coming to prayer for permanent injunction made in Clause 60 (f),
(g) & (h) in CS (Comm) No. 92/20, it may be noted that vide ex-parte interim order dated 10.02.2020 passed by this Court, defendants were restrained form issuing or circulating any groundless threat by way of circulations/advertisement, or by communication in any manner to the plaintiffs or to any other persons claiming that the plaintiffs are infringing or violating any copyright of defendants with respect to prints/patters reproduced in para 19 of plaint till next date of hearing.
69. Defendants never filed any application under Order 39 Rule 4 CPC for vacation of interim order dated 10.02.2020 and the said order continue to operate even till today. Even otherwise, in view of findings of the Court on issue no. 1 & 2, defendants cannot claim any copyright over CS (Comm) 92/2020 CS (Comm) 167/2020 38/45 the job work done by defendants using the water marbling technique. Accordingly, it is held that plaintiffs are entitled to decree of permanent injunction in terms of prayer 60 (f),(g) and (h) in CS (Comm) No. 92/20.
70. Issue no. 9 - Whether the plaintiff (Mrs. Flakes in suit no. 167/2020) is entitled to the relief of declaration and injunction as sought? OPP.
71. In view of findings of the Court on issue no. 1, 2 & 4, defendants herein (plaintiffs in CS (Comm) 167/20) cannot claim any relief of declaration and injunction as prayed for in the suit. Accordingly, issue no. 9 is decided against defendants and in favour of plaintiffs.
72. Issue no. 10 - Whether in suit no. 167/2020, defendants no. 1 to 3 (Limerick) are required to specifically perform the contract recorded in e- mail dated 7.4.2019 and 9.4.2019 i.e. to not reproduce the artistic work of plaintiffs' (Mrs. Flakes) without a licence from the plaintiffs (Mrs. Flakes)?
73. This issue is connected with issue no.3 & 4 and will be covered by the findings given by the Court on issue no. 3 & 4.
74. Once it is held that consent of plaintiffs to the agreement recorded in e-mail dated 07.04.2019 & 09.04.2019 was induced by misrepresentation and contract is vitiated by fraud as provided under CS (Comm) 92/2020 CS (Comm) 167/2020 39/45 Section 17 of Indian Contract Act, plaintiffs cannot be directed to specifically perform the contract. Defendants cannot insist on specific performance of agreement which is voidable at the option of plaintiffs. Asking the plaintiffs to specifically perform the contract will lead to illogical absurdity and unwarranted consequences resulting in miscarriage of justice. Accordingly issue no. 10 is decided in favour of plaintiffs and against defendants.
75. Issue no. 11 - Whether plaintiff (Limerick) is entitled to any damages? OPP.
76. Plaintiffs are claiming damages under following heads :-
(i) Damage to reputation of Limerick owing to messages sent to Social Media influencers.
(ii) Loss of reputation owing to impleadment of defendant no. 4 to 14 in CS (Comm) No. 167 of 2020.
(iii) Misrepresentation by Mrs. Flakes in order to obtain the job work of water marbling printing for Limerick.
(iv) Failure to perform water marbling printing as agreed upon between Limerick and Mrs. Flakes.
(v) Failure to return the fabric sent for the third batch of printing on 11th July 2019.
(vi) Failure to deliver on the 3rd batch of water marbling prints.
(vii) Limerick was forced to create digitally marbled prints on account of failure to deliver the third batch of water marbling prints.
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(viii) Filing false and malicious criminal complaint filed by Mrs. Flakes against Limerick.
(ix) Legal Costs.
77. Plaintiffs claimed damages on account of loss of reputation of plaintiffs owing to messages sent by defendants to various social media influencers as well as owing to impleadment of defendant no. 4 to 14 in CS (Comm) No. 167/20.
78. Defamation is injury to the reputation of a person. A person's reputation is his property. However, plaintiffs cannot estimate their reputation by themselves. Reputation of a person lies in the estimation of other person (s) known to him/her. When other person (s) who are known to the person alleged to have been defamed state that reputation of the person stated to have been defamed has come down in their eyes or estimation, then only an action for defamation will lie. The only exception is when the statement itself is per se defamatory. Plaintiffs have not examined any such social media influencer in whose estimation plaintiffs' might have been defamed.
79. In the absence of any independent witness to depose about the loss of reputation of plaintiffs' in the eyes of right thinking persons of society, allegation of defamation on the part of defendants are not substantiated.
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80. Besides, plaintiffs have neither specified nor proved as to the loss or damages they suffered on account of breach of agreement between parties on the part of defendants. The compensation for any breach of contract has to be assessed on the basis of any loss or damages suffered by party complaining of breach. Plaintiffs have not led any cogent evidence to establish quantum of loss stated to have been suffered by them. Defendants have rightly mentioned in the written submissions that plaintiffs have only made bald statement regarding loss of goodwill, loss of business opportunity, etc. arising from non compliance of third batch without adducing any evidence in support of these claims. Plaintiffs have not indicated any purchase order which might have been cancelled by buyers or withdrawal of order, etc.
81. In Hindustan Petroleum Corporation Ltd. Vs. Offshore Infrastructure Ltd., 2015 SCC Online Bom 4146, it was held that unless loss is pleaded and proved, it cannot be recovered.
82. In Construcciones Y Auxiliar De Ferrocarriles Vs. Delhi Airport Metro Express Private Limited (India), 2025 SCC Online Del 1974, it was held that where a contracting party has suffered losses, the onus is on them that in order to get a reasonable compensation, they should prove that the party has actually suffered a loss. Hence, plaintiffs cannot claim any damages on account of loss of reputation.
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83. Other heads under which plaintiffs are claiming damages are based on performance or non performance of contract recorded in the e- mail dated 07.04.2019. The said agreement has also been held to be voidable while deciding issue no. 3 & 10. Section 19 of Indian Contract Act provides that a party to a contract whose consent was obtained by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true . Plaintiffs, once having taken a stand that the said contract is vitiated by misrepresentation and plaintiffs cannot be asked to specifically perform the said contract, cannot insist on the performance of said contract to claim damages.
84. Sofar as filing of criminal complaint by defendants against plaintiffs is concerned, there is no specific averment in the plaint regarding malicious prosecution of plaintiffs. As per para 46 of plaint in CS (Comm) No. 92/20, proceedings in the said complaint are still underway and no FIR has been registered against plaintiffs.
85. In West Bengal State Electricity Board vs Dilip Kumar Ray, AIR 2007 SUPREME COURT 976, two essential elements for constituting malicious prosecution were given as under :-
(a) That no probable cause existed for instituting the prosecution or suit complained of, and (b) that such prosecution or suit terminated in some way favorably to the defendant.
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86. Since the complaint filed by defendants has not reached to its logical conclusion, it cannot be said that filing of said complaint by defendants has caused any damage or loss to plaintiffs and hence, plaintiffs are not entitled to any damages on this count. Accordingly, issue no. 11 is decided in against plaintiffs and in favour of defendants.
87. Issue no. 12- Whether defendant (Mrs. Flakes) is entitled to any damages? OPD.
88. In view of findings given by the Court on issue no. 1, 2, 3 and 4, it is held that defendants are not entitled to any damages. Besides, defendants in their written submissions have referred to breach of contract on the part of plaintiffs and are claiming damages on account of losses flowing directly due to breach of agreement vide e-mail dated 07.04.2019 in view of under Section 73 of Indian Contract Act.
89. Defendants have also not proved any loss or damage caused to them on account of breach of agreement on the part of plaintiffs. Reasoning given while denying any damages to plaintiffs for breach of agreement applies to defendants also. Accordingly, issue no. 12 is decided against defendants and in favour of plaintiffs.
90. Issue no. 13 - Relief CS (Comm) 92/2020 CS (Comm) 167/2020 44/45
91. In view of findings of the Court on issue no. 1, 2, 3, 4, 6, 9, 10 & 12, the suit CS (Comm) No. bearing no. 167/2020 titled as M/s. Mrs. Flakes & Ors. Vs. Limerick Designs & Ors. is dismissed.
92. In view of the above findings of the Court, the suit of plaintiffs, bearing CS (Comm) No. 92/2020 titled Nanki Magoo Papneja & Ors. Vs. M/s. Mrs. Flakes & Ors. is decreed in terms of prayer 60 (b), (c) (d), (f),
(g) and (h) made in the plaint. Costs of suit are awarded to plaintiffs. Signed copy of this judgment be kept in CS (Comm) No. bearing no. 167/2020 titled as M/s. Mrs. Flakes & Ors. Vs. Limerick Designs & Ors.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by SANDEEP SANDEEP YADAV Announced in the open court YADAV Date: 2025.12.03 13:17:34 +0530 on 29.11.2025. ( Sandeep Yadav ) District Judge (Commercial)-03 South, Saket Courts, New Delhi. CS (Comm) 92/2020 CS (Comm) 167/2020 45/45