Delhi District Court
Seb.S.A vs Sh. Sushil Kumar on 23 April, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12
TIS HAZARI COURTS, DELHI.
T. M. No.: 78/2011
Unique ID no. 02401C0376562005
SEB.S.A.,
Les4M, Chemn Du Petit Bois,
69130 Ecully, France. ....Plaintiff
Versus
1. Sh. Sushil Kumar
2. Sh. Rajinder Kumar
Trading as
M/s B. K. Enterprises
A23, Gali no. 4, Anand Prabhat
Industrial Area,
New Delhi110 005
3. M/s B. K. Enterprises
A23, Gali no.4, Anand Prabhat
Industrial Area,
New Delhi110 005 ....Defendants
Date of institution of the suit: 23.09.1997
Reserved for judgment on: 23.04.2012
Date of pronouncement of judgment: 23.04.2012
Suit for perpetual injunction, infringement of
trade marks, copyright, passing off and damages.
JUDGMENT: This is a suit for perpetual injunction, infringement of trade SEB SA Vs. Sushil Kumar TM No. 78/11 Page 1 of 24 2 mark, copyright, passing off and damages filed by plaintiff.
2. The facts as propounded in the pleadings stated briefly are:
(i). The plaintiff is a manufacturer and seller of electrical apparatus used in the preparation of food stuff and beverages; vacuum cleaners; electrical irons, electrical switches; connectors; cables; reels and spools; weighing operators and instruments under the trade mark MOULINEX.
(ii). The trade mark MOULINEX is used by the plaintiff in a stylish and special form which has been duly registered under no. 312081 dated 02.02.1976 in class VII and under 312083 dated 2.02.1976 in class IX.
(iii). The word 'MOULINEX' also forms a memorable part of the corporate name of plaintiff.
(iv). In the course of trade and business, the trade mark MOULINEX has acquired tremendous reputation and goodwill amongst the consumers in the India and the world wide. It has become an icon of superior quality.
(v). Over the years, the plaintiff has achieved an envious turnover of the products sold under its brand name. It has been SEB SA Vs. Sushil Kumar TM No. 78/11 Page 2 of 24 3 incurring substantial expenditure on recurring basis on the promotion and advertisement of its products sold under the trade mark MOULINEX.
(vi). The word MOULINEX used in logo script in a particular style constitutes original artistic work within the meaning of Section 2 (c) of the Copyright Act. The trade mark and copyright has become distinctive of the goods of the plaintiff.
(vii). The plaintiff for the first time come to know in in the beginning of 1996 from the Trade Mark Journal no. 1116 dated 01.12.1995 that the defendant has applied for registration of the trade mark MOULIMEX in Class 11 in respect of immersion heaters, electric toasters, electric ovens, fans, heating elements, room heaters, electric coil stove. The defendants have given false user in the application no. 481714. The said application has been opposed by the plaintiff. In September 1996 the plaintiff further discovered that the defendants have been using the said trade mark MOULIMEX in respect of electric iron and toasters. The trade mark as used by defendants is substantially and deceptively similar to plaintiff's trade mark. The SEB SA Vs. Sushil Kumar TM No. 78/11 Page 3 of 24 4 defendants' use is per se dishonest. It is likely to cause deception and confusion in the mind of consumer to the disadvantage of the plaintiff. The trade mark as used by the defendants is deceptively similar to the plaintiff's trader mark both visually and phonetically. They are sold through the same trade channels. The defendants have also been depicting their trade mark as registered though it is not registered.
(viii). The plaintiff through a Notary Public on 08.09.1996 purchased the two mixers and noted the following:
a) 12 Light weight electric iron marked MOULIMEX Auto Iron with the ISI NO. IS366 and a product of B. K. Enterprises with address on the printed carton. The products are also marked Moulimex @ Rs. 320/ each total value Rs. 3,840/
b) 5 Toaster marked MOULIMEX Toastmore with the ISI No. IS:366, a product of B. K. Enterprises with address on the printed carton. The products are also marked Moulimex @ Rs. 340/ each total value Rs. 1700/
(ix). The acts and omissions of the defendants are prejudicial to SEB SA Vs. Sushil Kumar TM No. 78/11 Page 4 of 24 5 the rights and interest of the plaintiff and hence this suit for perpetual injunction, infringement of trade marks, copyright, passing off an damages.
3. The defendant no. 1 opposed the claim of the plaintiff making the following averments:
(i). The plaintiff has not approached the court with clean hands; suppressed the material facts; has pressed false and wrong facts into service; misjoinder of partier as the defendant no. 3 is the sole propriertorship of the defendant no. 1; defendant no. 2, Shri Rajinder Kumar, is not necessary party; suit cannot be filed against the defendant no. 3 being a sole proprietorship firm.
(ii). Trade mark of the plaintiff is liable to be removed from the register of trade marks; the defendant has already applied for registration of trade mark MOULIMEX; the name of plaintiff is not known in India; goods of the defendant have enviable reputation all over India; the trade mark of the defendant has been extensively advertised including on DTC buses; the defendant no. 1 has spent lakhs of rupees on sales and SEB SA Vs. Sushil Kumar TM No. 78/11 Page 5 of 24 6 promotion of its trade mark as stated above; the usage of defendant has been prior to 1980 which is established by a previous notice received in 1980 from Penning & Depenning, Trade Mark Attorneys which was duly replied.
(iii). The products of the defendants bearing the trade mark MOULIMEX were advertised as for back as in the year 1978 and have since been continuously advertised by various modes.
(iv). The material averments on which the plaintiff has propounded its cause of action have been denied in the above terms.
4. In its replication the plaintiff denied the material averments of the written statement and reiterated the averments of the plaint.
5. With the available pleadings the following issues have been frame d on 24.10.2008 as under:
1. Whether the suit is bad for misjoinder of the parties as pleaded in P.O. No. 2 of the W.S? If so, it's effects? OPD
2. Whether the defendant no. 1 cannot claim any right pertaining to the trade mark MAULIMEX SEB SA Vs. Sushil Kumar TM No. 78/11 Page 6 of 24 7 registered under the Copyright Act vide registration no. A25096/79 dated 17.08.79 in favour of M/S MOULIMEX ENTERPRISES (INDIA)? If so, whether the defendants are guilty of infringement of the copyright of the plaintiff? OPP
3. Whether the defendants are guilty of infringing the registered trade mark MAULINEX of the plaintiff in respect of the goods mentioned in the plaint? OPP
4. Whether the plaintiff is entitled to the relief of injunction as prayed for in the suit? OPP
5. Whether the plaintiff is entitled to recover damages from the defendant, if so, to what amount? OPP
6. Whether the plaintiff is entitled to a decree for delivery up as prayed for in the plaint? OPP
7. Relief.
6. The plaintiff has examined PW1 Sh. Gauri Shankar Ayyar as its only witness. The witness has tendered Ex.P1 to P6 as SEB SA Vs. Sushil Kumar TM No. 78/11 Page 7 of 24 8 documentary evidence. The oral evidence of the witness is contained in affidavit Ex.PW1/A. The plaintiff has tendered in its evidence six documents. Ex. P1 is the Power of Attorney in favour of Mr. Gauri Shanker Ayar; Ex. P2 is the copy of the deed of assignment dated 29.06.04 with request dated 11.11.2004 filed with the Registrar of Trade Marks; Ex. P3 is the certified extract of the registrations for use in Legal Proceedings issued by the Registrar of Trade Mark; Ex. P4 are the copies of the invoices and documents (Ex.P4 is placed in this file of Suit no. TM 78/2011 though referred to and relied upon in TM 79/2011 also); Ex. P5 is the copy of the advertisements to show the propagation of mark MOULINEX and Ex. P6 is a copy of the order of Intellectual Property Appellate Board.
7. No evidence has been is led by the defendant. The defendants have been proceeded as exparte on 21.11.2007. The defendants have not joined the proceedings thereafter.
8. I have heard Dr. Sheetal Vohra, ld. Counsel for the plaintiff and also perused the written submissions filed by the plaintiff.
9. Ld. Counsel for the plaintiff has argued that the case of the plaintiff has remained rebutted and unchallanged. The evidence on SEB SA Vs. Sushil Kumar TM No. 78/11 Page 8 of 24 9 record is self speaking of the matter. Ld. Counsel has copiously referred to the pleadings and evidence on record in the course of her arguments.
10. Ld. Counsel for the plaintiff has cited the following case law in support of her case:
1. M/s Modi Threads Ltd. Vs. M/s Som Soot Gola Factory & Anrs., 1993 PTC 32. (Title of the plaintiff accrues prima facie on the execution of the assignment deed. Nonregistration of same not coming in the way of preventing breach of trade mark).
2. Beiersdorf A. G. Vs. Ajay Sukhwani & Anr., 156(2009) DLT 83. (Initial adoption of trade mark by the defendant dishonest, then plea of laches or delay is immaterial).
3. Messrs Hindustan Pencils Pvt. Ltd. Vs. Messrs India Stationery Products Company & Anr. 1989 PTC61. (In case of deceptively similar trade mark injunction is granted, though the defendant SEB SA Vs. Sushil Kumar TM No. 78/11 Page 9 of 24 10 was holding copyright in the artistic work constituting the trade mark).
4. R. Madhavan Vs. S. K. Nayar, PTC (Suppl) (2) 221 (Ker) (DB). (Registration of copy right is not mandatory and does not give any additional right to the registered proprietor).
5. Parle Products (P) Ltd. Vs. J. P. and Company Mysore, PTC (suppl) (1) 346 (SC). (for finding out confusion or deception, broad features of the trade mark have to be considered and not side by side comparison).
6. M/s Nirex Industries (P) Ltd. Vs. M/s Man Chand Foot Wears Industries, 1984PTC97.
(Minor differences in trade marks are immaterial if the essential features are common).
7. M/s Pidilite Industries Pvt. Ltd. Vs. M/s Mittees Corporation and another, 1988(2) Arb. LR 3 (Delhi). (Phonetic similarity of two trade marks is likely to cause deception/confusion) SEB SA Vs. Sushil Kumar TM No. 78/11 Page 10 of 24 11
8. K.R. Chinna Krishna Chettiar Vs. Ambal and Company, Kadras and Anr., PTC (Suppl) (1) 258 (SC). (Case of phonetic similarity)
10. Dabur (S. K. Burman) Vs. Vikas Pharma, 1983PTC179. (case of phonetic similarity).
11. Midas Hygiene Industries Pvt. Ltd & Anr.
Vs. Sudhir Bhatia & Ors, 2004 (28) PTC 121 SC.
(in case of infringement either of trade mark or copyright, normally injunction must follow).
12. Milment Oftho Industries & Ors. Vs. Allegan Inc, 2004 (28) PTC 585 (SC). (Court is to see who is the prior adopter of trade mark globally).
11. After considering the submissions and the material on record my findings on various issues are as under: Issue no. 1: 1. Whether the suit is bad for misjoinder of the parties as pleaded in P.O. No. 2 of the W.S? If so, it's effects?
12. The onus of this issue has been on the defendants. Only thedefendant no. 1 has been contesting the case as a proprietor of the defendant no. 3. In fact his stand is that the defendant no. 3 is not a SEB SA Vs. Sushil Kumar TM No. 78/11 Page 11 of 24 12 juristic entity or independent person. He has stated that the defendant no. 2 has been wrongly joined.
13. It is the settled law the plaintiff is dominus litus. However the plaintiff is not dominus parties. The court in its prerogative can add or delete the parties. The plaintiff has no right to demur on this aspect.
14. It was incumbent upon the plaintiff to show that the defendant no. 2 has been in any way connected with the defendant no. 3. No material or proof has been brought upon the record by the plaintiff, except its self serving statement, to establish on record that the defendant no. 2 has any stake or control in the defendant no. 3.
15. The defendant no. 1 has admitted himself to be proprietor of the defendant no. 3. Thus defendant no. 1 and 3 are not different entities. At the most, the defendant no. 3 is only an assumed name under which the defendant no. 1 carries on his business. But it is not a body corporate. It has no independent or juristic existence as recognized by the law.
16. Thus this issue is held in favour of the defendants holding that the defendant no. 2 is not a necessary party to the suit. Hence it's name is struckoff the arrays of the parties. SEB SA Vs. Sushil Kumar TM No. 78/11 Page 12 of 24 13 Issue no. 2: Whether the defendant no. 1 cannot claim any right pertaining to the trade mark MAULIMEX registered under the Copyright Act vide registration no. A25096/79 dated 17.08.79 in favour of M/S MOULIMEX ENTERPRISES (INDIA)? If so, whether the defendants are guilty of infringement of the copyright of the plaintiff? OPP
17. The plaintiff has proved its copyright in the artistic design by oral evidence in the matter. It has relied upon R. Madhavan Vs. S. K. Nayar, PTC (Suppl) (2) 221 (Ker) (DB) to cite that the registration of copy right is not mandatory and does not give any additional right to the registered proprietor.
18. It is the defendant no. 1 who wants the Court to believe in rival version. Once the plaintiff has discharged the onus, the same has shifted upon the defendant no. 1 & 3. The onus could have been discharged by leading oral and documentary evidence as to the material facts by defendants. That having not been done the matter stands crystallized as far as the discharge of onus by the plaintiff is concerned. Thus on the preponderance of probabilities the aspect of the plaintiff stands established. The plaintiff has also relied upon Messrs Hindustan Pencils Pvt. Ltd. Vs. Messrs India Stationery Products Company & Anr. 1989 PTC61 citing that in case of SEB SA Vs. Sushil Kumar TM No. 78/11 Page 13 of 24 14 deceptively similar trade mark injunction is granted, though the defendant was holding copyright in the artistic work constituting the trade mark.
19. Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. Copyrights comes into existence the moment a work in which copyrights subsists is born.
20. Registration of copyrights is not the sinequanon for subsistence of copyright. Acquisition of copyright is automatic and it does not require any formality. It vests on the date of publication of any original literary, dramatic, artistic or musical work etc. in its author. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.
21. The defendant has not entered into the witness box to prove the propounded copyrights registration and other incidental and ancillary matters. These are all factual aspects and for want of the evidence, no SEB SA Vs. Sushil Kumar TM No. 78/11 Page 14 of 24 15 cognizance of them can be taken. Thus no adverse view can be taken against the plaintiff as the genesis of the right has not been established.
22. Hence, the finding on this issue is returned in favour of the plaintiff.
Issue no. 3: Whether the defendants are guilty of infringing the registered trade mark MAULINEX of the plaintiff in respect of the goods mentioned in the plaint?
23. The oral and documentary evidence of the plaintiff has remained unchallenged and unrebutted. There is no material available with court to disbelieve the same. The law pronounced in M/s Modi Threads Ltd. Vs. M/s Som Soot Gola Factory & Anrs., 1993 PTC 32 wherein it has been held that title of the plaintiff accrues prima facie on the execution of the assignment deed and the nonregistration of same not coming in the way of preventing breach of trade mark comes to the aid of the plaintiff to establish its locus standi in relation to the cause of action.
24. The defendants have claimed independent right in the trade mark 'MAULIMEX'. The defendants have also set up in the SEB SA Vs. Sushil Kumar TM No. 78/11 Page 15 of 24 16 pleadings the historical facts as to the reason for adopting the trade mark 'MAULIMEX'. However, for the reasons best known to them the defendants have played truant and shied away from entering into the witness box. Thus these facts are not established.
25. Defendants have claimed to be in the trade since long. In view of the long standing of the plaintiff and its trade mark, there is no reason to believe that they were unaware of the trade mark of the plaintiff. Thus by no stretch of imagination it can be imagined that the defendants were so naïve as to have coined and adopted a trade mark as 'MAULIMEX' which is deceptively similar to the trade mark of plaintiff as 'MOULINEX' in respect of same/similar goods of the same class. Thus on preponderance of probabilities the ignorance of defendants is feigned, pretence and moonshine.
26. The plaintiff has cited the case of M/s Pidilite Industries Pvt. Ltd. Vs. M/s Mittees Corporation and another 1988(2) Arb. LR 3 (Delhi); K.R. Chinna Krishna Chettiar Vs. Ambal and Company, Kadras and Anr., PTC (Suppl) (1) 258 (SC) and Dabur (S. K. Burman) Vs. Vikas Pharma 1983PTC179, which are leading cases of phonetic similarity. The case of plaintiff also sails in the same SEB SA Vs. Sushil Kumar TM No. 78/11 Page 16 of 24 17 boat. The trade mark of the defendants is deceptively similar to the trade mark of the plaintiff, both visually and phonetically. On the face of it, the same is likely to cause confusion and deception in the mind of an ordinary prudent person of imperfect recollection. The similarity in the two trade mark is so manifest that there is no room for doubt about the infringement.
27. In Parle Products (P) Ltd. Vs. J. P. and Company Mysore, PTC (suppl) (1) 346 (SC) it has been held as under:
"...To decide the question as to whether the plaintiffs' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. According to this Court in Durga Dutt v. Navratna Pharmaceutical Laboratories, (1965) 1 SCR 737 at p. 754 = (AIR 1965 SC 980) :
"While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of registered trade mark for the vindication of the exclusive right to the trade mark SEB SA Vs. Sushil Kumar TM No. 78/11 Page 17 of 24 18 in relation to those good (vide Section 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement."
In the above case the Court further pointed out:
"In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the getup, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability of he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."
28. In the case of Parle Products (P) Ltd. Vs. J. P. and Company Mysore, PTC (suppl) (1) 346 (SC) it has been further held as under: SEB SA Vs. Sushil Kumar TM No. 78/11 Page 18 of 24 19
"9. It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him..."
29. Thus considering the class of consumers and the nature of adoption by the defendants it is manifestly clear that the defendant's have infringed the trade mark of the plaintiff.
30. This issue is held in favour of the plaintiff. Issue no. 4: Whether the plaintiff is entitled to the relief of injunction as prayed for in the suit?
31. The plaintiff has relied upon Midas Hygiene Industries Pvt. Ltd & Anr. Vs. Sudhir Bhatia & Ors, 2004 (28) PTC 121 SC to cite that in case of infringement either of trade mark or copyright, normally injunction must follow. The case law as cited by the plaintiff SEB SA Vs. Sushil Kumar TM No. 78/11 Page 19 of 24 20 is applicable to the facts and circumstances of its case. Having established that the defendants have infringed the trade mark of the plaintiff and it has caused a legal injury to the plaintiff which is continuing as there is nothing to show that the defendants have ceased or desist from their acts and omissions, the entitlement of the plaintiffs for injunction is a logical corollary.
32. Hence this issue is answered in favour of the plaintiff. Issue no. 5: Whether the plaintiff is entitled to recover damages from the defendant, if so, to what amount?
33. The purpose of awarding damages or compensation is to put a balm on the injury suffered by the plaintiff on account of tortuous conduct of the defendant. The approach is to set back the clock to restore status quo ante or put the plaintiff at the original position which existed prior to suffering of damage by the plaintiff.
34. The plaintiff has claimed consolidated damages @ Rs. 5 lakhs. In a trade marks violation case, the quantum of damages is the most difficult thing to establish. This is primarily for the reason that the best evidence is in the possession of the defendants. The defendants have been playing truant in the instant matter. Thus the best evidence has SEB SA Vs. Sushil Kumar TM No. 78/11 Page 20 of 24 21 eluded the Court. Thus the rendition of accounts is foregone possibility.
35. Nevertheless, the circumstantial evidence can be considered to estimate the damages. In the present case the evidence of the plaintiff has not been impugned. I am of the view that as the defendants have used the plaintiff's trade mark for quite some time but the exercise of rendition of very complex in view of the number of transactions involved; categorization/bifurcation of transactions into different slots where the plaintiff's goodwill has been abused and where it has not been abused being a stumbling block; cumbersome calculations involved; the case being very old and a host of other factors which all cannot be illustrated here, the rendition of accounts may not be feasible. Therefore lumpsum and consolidated damages can be awarded.
36. Some guess work in such circumstances cannot be ruled out to award token damages. Considering the goodwill and reputation of the plaintiff, the false stand taken by the defendants and all other attendant facts in my view the interest of justice would be served, if token damages of Rs. 2,00,000/ (Rupees Two Lakhs Only) are awarded to SEB SA Vs. Sushil Kumar TM No. 78/11 Page 21 of 24 22 the plaintiff against the defendants.
37. This issue is answered accordingly.
Issue no. 6: Whether the plaintiff is entitled to a decree for delivery up as prayed for in the plaint?
38. The evil should be given a complete and decent burial, lest it may raise its ugly head again.
39. Thus the delivery up of the infringing material is just and necessary to meet the ends of justice when the plaintiff has been successful in establishing its case.
40. Therefore this issue is rendered in favour of the plaintiff.
RELIEF
41. I, therefore, after considering the material on record and findings on the above issues, grant the following reliefs to the plaintiff:
(i). A decree of permanent injunction restraining the defendants, their agents, representatives, assigns, officers, partners, servants, administrators etc. from using the mark 'MAULIMEX' or any other deceptively similar imitation of the plaintiff's trade mark 'MOULINEX' in any manner deceptively similar or nearly SEB SA Vs. Sushil Kumar TM No. 78/11 Page 22 of 24 23 resembling the plaintiff's trade mark in any way in respect of Mixer Grinders or any other allied or cognate goods or in any other way infringing the trade mark of the plaintiff.
(ii). A decree of permanent injunction restraining the defendants, their agents, representatives, assigns, officers, partners, servants, administrators etc. from using the mark 'MOULINEX' in a manner as to cause substantial reproduction of plaintiff's logo/artistic work either in whole or in part etc. in any manner substantially similar or nearly resembling the plaintiff's in any manner as to infringe the Copyright of the plaintiff in the said artistic work.
(iii). A decree of permanent injunction restraining the defendants, their agents, representatives, assigns, officers, partners, servants, administrators etc. from using the mark 'MAULIMEX' or any other deceptively similar imitation of the plaintiff's trade mark 'MOULINEX' in any manner deceptively similar or nearly resembling the plaintiff's trade mark in any way in respect of Mixer Grinders or any other allied or cognate goods or in any other way and thereby passing off their goods as if they have association with or originate from the plaintiff.
SEB SA Vs. Sushil Kumar TM No. 78/11 Page 23 of 24 24
(iv). A decree for orders of delivery of infringing and other incriminating material like publicity/promotional material, blocks, stationery items, letter heads/printed material, packing material, etc. by the defendants, their agents representatives, assigns, officers, partners, servants, administrators etc. to the plaintiff for destruction.
(v). A decree for a sum of Rs. 2,00,000/ (Rupees Two Lakhs Only) as token consolidated damages to the plaintiff payable by the defendants jointly and severally as damages.
(v). The plaintiff is awarded costs of this suit, which I quantify at Rs. 30,000/ (Rupees Thrity Thousand Only) consolidated.
42. Decree sheet be drawn accordingly.
43. After necessary compliance, the file be consigned to the Record Room.
Announced in the Open Court on this 23rd day of April 2012 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi SEB SA Vs. Sushil Kumar TM No. 78/11 Page 24 of 24