Calcutta High Court
Marico Ltd. & Anr vs J. K. Enterprises on 31 January, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Sugato Majumdar
CS/128/2004
MARICO LTD. & ANR.
VS
J. K. ENTERPRISES
For the Plaintiff : Mr. Balarko Sen, Adv.
Mr. Suvradal Choudhury, Adv.
Hearing concluded on : 15/01/2024
Judgment on : 31/01/2024
Sugato Majumdar, J.:
The instant suit was originally instituted by M/s Hindustan Lever Ltd., a company registered under the Companies Act 1956, being the original Plaintiff no. 1 along with M/s Indexport Ltd., a company registered under the Companies Act 1956, against the Defendant alleging infringement of trade-mark.
The original Plaintiff no. 1 was owner of the band 'NIHAR' and used to market perfumed coconut oil under the said brand-name and trade-mark 'NIHAR'. The word 'NIHAR' appeared on the labels and packages in a distinctive style, get- up, write-up and in distinctive colour scheme. The word was used in conjunction Page |2 with a device of two coconut-trees one full coconut and another half coconut. The original Plaintiff no. 1 had been selling the product from the year 1995.
On or about 17th February, 2006, the Plaintiff No. 1 executed a deed of assignment in favour of the present Plaintiff M/s Marico Ltd., a company registered under the Companies Act 1956, whereby the original Plaintiff no. 1, M/s Hindustan Lever Ltd. transferred, assigned and conveyed all its rights, titles and interests in the trade-mark 'NIHAR', for valuable consideration in favour of the present Plaintiff as aforesaid. By virtue of the aforesaid assignment, the present Plaintiff became the owner of the trade-mark 'NIHAR' together with the good-will in India. The present Plaintiff is manufacturing and marketing coconut oil under the mark 'NIHAR'. The original Plaintiff M/s Hindustan Lever Ltd. got the trade-mark registered in its name. Subsequent to assignment the present Plaintiff made application for registration of the trade-mark 'NIHAR' in its name and got it so registered. As such presently, the present Plaintiff is the registered proprietor of the trade-mark 'NIHAR'. The present Plaintiff also substituted itself in place of the original plaintiffs.
In the second week of February 2004 the original Plaintiff No. 1 came to know that the Defendant no. 1 had been selling coconut oil in plastic packets having deceptive similarity, trade-dress, get-up, colour scheme and dimension with that of the original Plaintiff no. 1. The original Plaintiff purchased a packet of the deceptively similar coconut oil from the Defendant no. 3 at Bhagwati Store, 13A, Bidhan Sarani, Kolkata - 700006. In or around the month of November 2009 the present Plaintiff came to know that the Defendant no. 1 has marketing and selling double filtered coconut oil 200ml. jars bearing deceptively similar mark 'Nihal'. The style, colour scheme and writing type of the packages of the coconut oil of the Page |3 Defendants are deceptively and confusingly similar to that of the Plaintiff. In doing so, the Defendants are motivated with mala-fide object to deceive and confuse the consumers and pass-off their product as that of the Plaintiff.
The original Plaintiff instituted the instant suit praying for permanent injunction restraining the Defendants from passing off, along with others; decree for delivery up and destruction of labels, packages, cartons, and boxes of the Defendants similar to or in colourable imitation of those of the Plaintiff along with other prayers in view of infringement of trade-mark and passing off.
In spite of service of summons of Defendants did not contest the suit for which the suit became an undefended one, in terms of the order dated 20th June 2023. The Learned Counsel for the Plaintiff submitted that since no claim for damages is there, no evidence was required and proceeded with argument.
The first limb of argument of Mr. Sen, the Learned Counsel appearing for the present Plaintiff is that since the Defendants did not contest the suit and did not file written statement, this Court under Order VIII Rule 10 of the Code of Civil Procedure, 1908, shall pass judgment on the basis of the plaint. Referring to Kaira District Co-operative Milk Producers Union Ltd. & Anr. Vs. Maa Tara Trading Co. & Ors. [AIR 2022 Cal 377] and Shyam Sel Power Ltd. Vs. Atibir Industries Company Ltd. [2023 SCC OnLine Cal 3781]. Mr. Sen argued that a co-ordinate Bench of this Court considered the scope of Order VIII Rule 10 of the Code of Civil Procedure, 1908 and held that the Court can invoke its provision to curb dilatory tactics, often resorted to by the Defendant, by not filing written statement, by pronouncing judgment against it. It is further submitted by Mr. Sen that at the same time, the Court must be cautious and judge the contents of Page |4 the plaint and documents on record as being of unimpeachable character, not requiring any evidence to be led to prove its contents.
Provision of Order VIII Rule 10 of the Code of Civil Procedure, 1908 should be looked into before appreciating the argument of the Sen.
"10. Procedure when party fails to present written statement called for by Court. - Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
It is pertinent to observe that though this Rule was amended a number of times the part of it namely "the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit.." was not changed. Scope of this rule was elaborately discussed by the Supreme Court of India in different cases. Before discussing those, it is also necessary to look into the provision of Order VIII Rule 5 (2) of the Code of Civil Procedure, 1908.
"Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved."
Page |5 Scope of Order VIII Rule 10 of the Code of Civil Procedure, 1908 was considered by the Supreme Court of India in Modula India Vs. Kamakshya Singh Deo [(1988) 4 SCC 619]. Speaking for the Bench, S. Ranganathan, J. observed that the rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint.
"Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the Defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Courts to pass a decree in favour of the Plaintiff straightway because written statement has not been filed." - the Court explained.
In Balraj Taneja & Anr. Vs. Sunil Madan & Anr. [(1999) 8 SCC 396], explaining the scope of the later rule, the Supreme Court of India observed that though the fact stated in the plaint may be treated as admitted where written statement has not been filed, the Court may, in its discretion, still require such "admitted fact" to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted, need not be proved. Speaking on Order VIII Rule 10, it was observed that the rule gives a discretion either to pronounce judgment against the Defendant or "make such order in relation to the suit as it thinks fit".
"These words are of immense significance, in as much as they give a discretion to the court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit."
Page |6 Balraj Taneja's case (supra) was considered by the Supreme Court of India in C.N. Ramappa Gowda Vs. C.C. Chandregowda [(2012) 5 SCC 265]. In this case, the Court observed that where written statement has not been filed, the Court should be a little more cautious in proceeding under Order VIII Rule 10 of the Code of Civil Procedure, 1908 and before passing a judgment, it must ensure that even if facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint. It was further observed:
"26. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the Plaintiff in view off deemed admission by the defendant, the Court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed question of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy."
In Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Ltd. & Anr. [(2013) 4 SCC 396], referring to the earlier authorities, the Supreme Court of India commented:
Page |7 "9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary and Court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the Court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the Court must give reasons for passing such judgment, however short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the Court must proceed, and under what reasoning the suit has been decreed."
The principle of law is clear from the above-mentioned judgments. There is a discretionary power of the Court to pronounce judgment or to pass other appropriate order. No straightjacket formula can be put forth. It is not a mechanical process to pronounce judgment mandatorily in absence of written statement. Everything depends upon the nature, character and merit of each case. Discretion exercised by one Court or in one case cannot be a blindfold precedent for the other one. A Court must be satisfied that a particular case is one, considering its merit and averments made in the plaint, that it invites the Court to pronounce judgment, in absence of any written statement on deemed admission of the plaint case. It is discretionary for a court and a court may require the Plaintiff to prove the facts averred in the plaint by evidence. This cannot be curbed or stopped at the Page |8 instance or insistence of a Plaintiff who for this or that reason may not be willing to adduce evidence.
Coming to the case in hand, the suit was filed in the year 2004. Summons were served upon the Defendant no. 1 and 2 in the year 2010. Article containing summons were sent to the Defendant no. 3 on 09.02.2010 which was returned as not claimed. In other words, summons were served in the year 2010. The Defendants did not appear and the suit has been kept pending since then. It is not a case where Defendant delayed the matter. It is nonchalance of the Plaintiff to proceed with the suit which caused procrastination in hearing, adjudication and disposal of the suit.
Order VIII Rule 10, as discussed above, gives an option to this Court to pass judgment on the plaint or to pass any other order. This Court treated the suit as undefended in terms of the order dated 20th June, 2023. This is in compliance with the second limb of the requirement of Order VIII Rule 10 which says that, "or make such order in relation to the suit as it thinks fit." Once this Court passed the order, the suit assumed all the characters of an undefended suit including adducing of evidence. Once this Court resorted to the second option provided in Order VIII Rule 10, the first option to pronounce judgment on deemed admission of plaint recedes to the background and becomes redundant. Order VIII Rule 10 does not provide for simultaneous exercise all both the options and no authorities are there in this respect suggesting so, because exercise of both the powers with the contradictory. The Learned Counsel for the Plaintiff did not adduce any evidence once the Court requires to prove the facts. Therefore, the plaint case cannot be said to be proved. It is a case where the facts averred are not proved.
Page |9 There is another aspect of the case. The present Plaintiff derived his right, title and interest in respect of the trade-mark in question by virtue of deed of assignment executed by the original Plaintiff summons Hindustan Lever Ltd. The said deed of assignment and registration certificate of the trade marks, a genesis of Plaintiffs right, title and interest, list of documents annexed to the plaints do not contain certificate of registration and the copy of deed of assignment for reason best to the Plaintiffs. Therefore, this Court will always hesitate to pronounce judgment on the basis of plaint case where essential and vital documents are withheld by the Plaintiff for reason best known to them. Even looking from that angle, it is not a fit case where judgment can be pronounced on the basis of the plaint only.
In absence of evidence the Plaintiff's case is not proved. Since the plaint case is not proved it is not necessary to go into or consider the substantive issue involved for those factual aspects are not supported by evidence so as to engross attention and consideration of this Court.
Therefore, this Court has no option than to dismiss the suit as not proved. It is ordered that the suit is dismissed as not proved.
The instant suit is disposed of accordingly along with all pending application, if any.
(Sugato Majumdar, J.)