Delhi High Court - Orders
Haldiram India Pvt Ltd vs S K Foods And Beverages & Anr on 16 May, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 310/2023
HALDIRAM INDIA PVT LTD ..... Plaintiff
Through: Mr. Neeraj Grover, Mr. Kashish
Sethi, Ms. Sunidhi Gupta and Ms. Ayushi
Chandra, Advs.
Versus
S K FOODS AND BEVERAGES & ANR. ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 16.05.2023
CS(COMM) 310/2023
1. The plaintiff is aggrieved by the use, by Defendant 1, of the marks HALDIRAM BHUJIAWALA/ and , representing itself as a franchisee of the plaintiff.
2. The plaintiff holds, inter alia, registrations under the Trademarks Act 1999, for the device mark w.e.f. 27th December 1972.
3. The plaint asserts that pursuant to certain family arrangements, all rights in respect of the mark were transferred to the plaintiff Signature Not Verified company. Mr. Grover, learned Counsel for the plaintiff, Signed By:KAMLA RAWAT CS(COMM) 310/2023 Page 1 of 6 Signing Date:17.05.2023 12:23:53 submits that, under the Certificate of Registration issued in favour of the plaintiff in respect of , the plaintiff was entitled to use of the said mark in the whole of India except the State of West Bengal. Defendant 2 was entitled to use the said mark only for the State of West Bengal.
4. Defendant 2 apparently opened certain showrooms in Delhi in 1990, which prompted the plaintiff to institute a suit before this Court, which was subsequently transferred to the learned District Court. In the said suit, a settlement came to be drawn up on 3rd May 2016, whereunder Defendant 2 acknowledged the ownership of the plaintiff in and was granted a licence to manufacture and sell its own prepacked products, using his mark. He was also granted a licence to use mark, but was not entitled to sub-license or further allow anyone else to use the saie mark for any products. Mr. Grover also points out that, in fact, an earlier suit had been instituted by the plaintiff against the defendants before the learned District Court, Karkardooma Court, which was returned for want of territorial jurisdiction and that, in the said suit, the plaintiff was enjoying an injunction till the plaint was returned.
5. In transgression of the said settlement, it is asserted, in the plaint, that Defendant 2 entered into a Super Stockist Agency (SSA) Agreement, whereby and whereunder Defendant 1 was permitted only to act as a stockist of the goods of Defendant 2 in the areas in which Defendant 1 was permitted to market the said goods. Defendant 1 was Signature Not Verified Signed By:KAMLA RAWAT CS(COMM) 310/2023 Page 2 of 6 Signing Date:17.05.2023 12:23:53 not, in any event, entitled to use the mark or act as a franchisee or represent itself to be a franchisee of the plaintiff.
6. The plaint alleges that in violation of the SSA and in derogation of the right which emanates in favour of the plaintiff as per the Certificate of Registration held by the plaintiff in respect of the mark, Defendant 1 is indulging in manufacture and sale of its own products, as well as in operating a restaurant in Muzaffarpur, Bihar, using the impugned logos and , and thereby representing himself to be connected or associated with the plaintiff. Besides the fact that the SSA was in excess of the authority which had been conferred on Defendant 2, Defendant 1 is, in the manner in which he is using the impugned mark, even transgressing his right under the SSA.
7. This, the plaint asserts, amounts to infringement of the rights vested in the plaintiff in the impugned marks as well as an attempt, by Defendant 1, to pass off its services as those of the plaintiff.
8. A prima facie case has been made out in the plaint, let the plaint be registered as a suit.
9. Written statement, accompanied by affidavit of admission and denial of the documents filed by the plaintiff be filed within 30 days with advance copy to learned Counsel for the plaintiff who may file Signature Not Verified Signed By:KAMLA RAWAT CS(COMM) 310/2023 Page 3 of 6 Signing Date:17.05.2023 12:23:53 replication thereto, accompanied by affidavit of admission and denial of the documents filed by the defendants within 30 days thereof.
10. List before the learned Joint Registrar (Judicial) for completion of the pleadings, admission and denial of documents and marking of exhibits on 18th July 2023, whereafter the matter would be placed before the Court for case management hearing and further proceedings.
I.A. 9444/2023(Order XXXIX Rules 1 and 2 of the CPC)
11. This is an application by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC).
12. Issue notice, returnable on 22nd August 2023 before the Court.
13. Reply, if any, be filed within a period of four weeks with advance copy to learned Counsel for the plaintiff, who may file rejoinder thereto, if any, within a period of four weeks thereof.
14. The facts of the case, as stated hereinabove, make out a prima facie case of unauthorised use, by Defendant 1, of HALDIRAM BHUJIAWALA, and marks, representing itself to be a franchisee of the plaintiff. As such, a case for grant of ad interim injunction is made out.
15. Accordingly, till the next date of hearing, Defendant 1 as well as all others acting on its behalf shall stand restrained from selling, Signature Not Verified Signed By:KAMLA RAWAT CS(COMM) 310/2023 Page 4 of 6 Signing Date:17.05.2023 12:23:53 conducting, offering for sale, stocking, advertising, directly or indirectly dealing in any food items, Indian sweets, namkins, and/or any other allied/cognate goods and/or any other goods or restaurant services under the impugned marks HALDIRAM BHUJIAWALA, and/or and/or any other marks confusingly and deceptively similar mark thereto and/or from using the mark HALDIRAM as part of names of its social media pages, e- mail ids, and/or in any manner representing its restaurant as HALDIRAM BHUJIAWALA, and/or except selling the pre-packaged goods manufactured by the Defendant No.2 and lawfully procured from him.
16. Compliance under Order XXXIX Rule 3 be effected within a week from today.
I.A. 9445/2023 (Order XI Rule 1(4) of the CPC)
17. This application seeks permission to file additional documents. The plaintiff is permitted to place additional documents on record in accordance with Order XI Rule 1(4) of the CPC as amended by the Commercial Courts Act within four weeks from today.
18. The application stands disposed of accordingly.
I.A. 9446/2023 (Section 12A of the Commercial Courts Act, 2015) Signature Not Verified Signed By:KAMLA RAWAT CS(COMM) 310/2023 Page 5 of 6 Signing Date:17.05.2023 12:23:53
19. In view of the judgment of the Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Pvt Ltd 1, exemption is granted from the requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
20. The application stands allowed accordingly.
I.A. 9447/2023 (Exemption)
21. Subject to the plaintiff filing legible copies of any dim or illegible documents within 30 days, exemption is granted for the present.
22. The application is disposed of.
C.HARI SHANKAR, J MAY 16, 2023 rb Signature Not Verified 1 Signed By:KAMLA 2022 SCC OnLine Del 3529 RAWAT CS(COMM) 310/2023 Page 6 of 6 Signing Date:17.05.2023 12:23:53