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Delhi District Court

Century Plyboards(I)Limited vs Akash Ply And Hardware on 7 November, 2023

IN THE COURT OF AMIT KUMAR : DISTRICT JUDGE
               (COMMERCIAL)-08
      TIS HAZARI COURTS, CENTRAL: DELHI
           (Commercial Case No. 2107/2019)

CNR No. DLCT01-007224-2019

M/S. CENTURY PLYBOARDS (I) LTD.
1ST FLOOR, TURNER MORRISION BUILDING 6,
LYONS TANGE, KOLKATA 700001
WEST BENGAL, INDIA

HAVING ITS BRANCH OFFICE AT:
5/2, D B GUPTA ROAD
RAJNIGANDHA BUILDING,
2ND FLOOR ROOM NO. 203,
PAHARGANJ, NEW DELHI - 110055

THROUGH THEIR CONSTITUTED ATTORNEY /
AUTHORIZED REPRESENTATIVE
MR. ANKUSH R KHANNA
                              .....PLAINTIFF
                VS

M/S AKASH PLY & HARDWARE
NEAR D.A.V. INTER COLLEGE,
TAXI STAND, NAWABGANJ,
UTTAR PRADESH 271303

ALSO AT:

M/S AKASH PLY,
CHAUDHRY PURWA,
NAWABGANJ, GONDA,
UTTAR PRADESH 271303
                                      ....DEFENDANT

Date of institution of case         : 25.05.2019
Date of arguments                   : 10.10.2023
Date of pronouncement of judgment   : 07.11.2023




                           -1-
 JUDGMENT:

1. Present is a suit seeking relief of permanent injunction restraining infringement of registered trademark and copyright, rendition of accounts and delivery of impugned finished and unfinished goods against the defendant on the averments that the plaintiff company is engaged in the business of wide range of products namely plywood, block board, laminates, decorative laminates, decorative plywood, particle boards, partition boards etc. all over India through its distributors and dealers under the trademark Century in connection with above mentioned products. The said mark Century is used by the plaintiff in all its products manufactured and marketed and due to continuous usage of the said trademark, the plaintiff is also vested with statutory rights over the trademark Century. There are several other marks of word Century either suffixed or prefixed has been registered in favour of the plaintiff viz. Century Terrashield, Century Terramite, Century Safewood, Century Furniture, Century Star, Century Col etc. It is stated that in May, 2019, plaintiff came through its representative that defendant is using deceptive similar mark 21st Centurian with respect of plywood and allied products, which amounts to infringement of plaintiff's trademark. The act of the defendant amounts to infringement/falsification of plaintiff's well known trademark Century and the present suit has been filed seeking injunction, delivery of goods and rendition of accounts.

2. The defendant in its written statement claimed that defendant has no concern with the unauthorized or otherwise use of the marks stated by the plaintiff and at no point of time ever manufactured or distributed or sold articles or goods as alleged in -2- the plaintiff. The suit is without cause of action based on concocted facts.

3. On the pleadings of the parties, following issued were framed on 15.09.2021:

1. Whether the trademark of the defendant "21ST CENTURIAN" is deceptively similar to the plaintiff's trademark "CENTURY" so as to constitute infringement? OPP

2. Whether the defendant has infringed the copyright of the plaintiff's artistic work? OPP

3. Whether the suit of the plaintiff is liable to be dismissed under Order VII Rule 11 CPC in view of the preliminary objection no. 3 of the written statement? OPD

4. Whether the plaintiff is entitled to delivery up of all goods, blocks etc. of the infringing material? OPP

5. Whether the plaintiff is entitled to rendition of accounts of profits earned by the defendant by infringing its trademark? OPP

6. Who is entitled to the costs, against whom and in what quantum? Onus on parties

7. Relief.

4. The plaintiff to prove its case examined Mr. Ankush R. Khanna, its AR as the only witness whereas defendant examined himself as the sole witness. Before giving findings on the issues, it is relevant to mention that an ex-parte order was passed in favour of the plaintiff on the application of the plaintiff U/o XXVI Rule 9 CPC and a local commissioner was appointed vide order dated 27.05.2019 to visit the premises and godown of the defendant situated at Nawab Ganj, U.P. to seize the alleged counterfeit products. The plaintiff did not take any steps for -3- execution of this order and mentioned on 04.02.2020 that the local commission has not yet been executed. The plaintiff failed to explain as to why necessary were not taken by the plaintiff for execution of this commission. Later on, plaintiff filed an application U/o VI Rule 17 CPC seeking amendment in the valuation clause of the plaint for the relief of damages in view of the judgment of Hon'ble Delhi High Court passed in the case of Vishal Pipes Vs. Bhavya Industries Ltd. That application was allowed and the amended plaint was taken on record to which defendant did not file amended written statement.

5. My issue wise findings are as under:

6. All these issues are inter-connected and are taken up together. The onus of proving all these issues was on the plaintiff. PW1 in his examination in chief reiterated the contents of the plaint and proved on record SPA in his favour Ex. PW1/2 and the affidavit of surveyor Ex. PW1/4. The other three documents sought to be exhibited were marked being the photocopies which includes the photograph of the picture of the alleged defendant's product taken by the surveyor. The witness in the cross examination stated that he is authorized to file the present suit vide SPA Ex. PW1/2, which is dated 28.10.2022. He admitted that this suit was filed in May, 2019. When asked to show any authority, which empowered him to file the suit, the witness stated that there is no such authority on record and the authorization letter dated 21.02.2017 Mark C is valid only till 31.03.2018.

7. Ld. Counsel for the defendant Ms. Devika argued that plaintiff has failed to prove that the present suit was filed by duly -4- authorized person. The documents submitted by the plaintiff does not show that defendant was dealing in the impugned plyboard. The plaintiff has filed only the printout of the pictures allegedly taken through mobile phone by the surveyor but there is no certificate U/s 65 B of the Indian Evidence Act. The surveyor has no qualification to show that he is an expert in the field to compare the trademarks and the plaintiff has failed to prove its case.

8. Ld. Counsel for the plaintiff on the other hand has argued that the written statement is vague and there is no specific denial of the averments made in the plaint. The defendant has not denied that he is not using the trademark 21 st Centurian in para 14 and 18 of the reply on merits in the written statement. The defendant in his cross examination admitted that he is not aware about the contents of the written statement and the affidavit of evidence and the plaintiff has proved that he is the registered owner of the trademark Century, which is being used for more than 25 years and plaintiff has proved its case and the same should be decreed. Ld. Counsel for the plaintiff, in support of his arguments, has relied upon the following judgments:

i) Cadbury India Ltd. & Ors. Vs. Neeraj Food Products, 142 (2007) DLT 724

ii) Century Plyboards (India) Ltd. Vs. Assam Woods & Allied Products, 2005 (2) CHN 655

iii) Dhunseri Tea & Industries Ltd. Vs. Dhunsiri Plantation Pvt. Ltd. passed in FMA No. 338/2008 dated 16.05.2008 by Hon'ble Calcutta High Court

iv) Diageo Brands B.V. & Ors. Vs. Khoday Breweries Ltd. & Ors. passed in CS (OS) No. 2510 of 2010 dated 03.09.2014 by Hon'ble Delhi High Court -5-

v) M/s. Apex Laboratories Pvt. Ltd. Vs. Axis Life Sciences passed in Civil Suit No. 254/2020 dated 03.01.2022 by Hon'ble Madras High Court

vi) M/s. Hindustan Pencils Pvt. Ltd. Vs. Anand Kumar Bajaj & Ors. passed in CS OS 1438/2011 dated 20.11.2014 by Hon'ble Delhi High Court

vii) United Distelleries & Vintners Vs. Khoday Breweries Ltd., 124 (2005) DLT 663

9. The perusal of the documents filed and proved by the plaintiff shows that PW1 has exhibited only SPA dated 28.10.2022 Ex. PW1/2 and the affidavit of surveyor Ex. PW1/4. The SPA Ex. PW1/2 shows that the same was executed on 28.10.2022 and the present suit was filed on 25.05.2019. It means that on the date of this suit, there was no authority to PW1 to file the present suit. This SPA did not rectify the previous acts of the attorney. In Clause 10, the SPA says that the company hereby agrees and undertakes to rectify and confirm whatsoever the said attorney shall lawfully do. This clause talks about the future acts of the attorney and not about the acts already done. The other document identified by the witness Mark C though it not proved yet even if considered for the sake of arguments, gives the authority only till 31.03.2018. Suit cannot be filed on the basis of this letter of authority Mark C. In facts, the plaintiff failed to show that suit has been filed by duly constituted attorney. Coming to the aspect of proving the infringement by the defendant, Ld. Counsel for the defendant Ms. Devika rightly argued that the plaintiff has failed to prove any infringement. Not only the alleged photograph taken by the surveyor Mark B is a photocopy but also the same is not supported by any certificate -6- U/s 65 B of the Indian Evidence Act as required. Allegedly this photograph was taken by the surveyor from mobile phone. Thereafter, the printout was taken and the photocopy of the said printout has been placed on record. The plaintiff has not only failed to prove the photograph but also the fact that the defendant was dealing in the infringed plyboard. The argument of the Ld. Counsel for the plaintiff that there is no denial by the defendant in para 14 and 18 of the written statement regarding use of infringed trademark is of no use as the plaintiff has to stand on his own leg and cannot base its case on the written statement. Otherwise also, the written statement cannot be read in piecemeal for the benefit of the plaintiff. It has to be read in whole and in preliminary objection paragraph 2, the defendant has specifically stated that at no point of time, defendant ever manufactured or distributed or sold at all the articles or goods as alleged in the plaint. Further in last line of para 10 of reply on merits and in last four lines of para 12 of reply on merits, the defendant has specifically stated that he has done nothing concerned with the mark or trademark of the plaintiff and has also denied using the trademark 21st Centurian. There is specific denial of the defendant that not only that he is dealing in the trademark Century but also that he is not dealing in the trademark 21 st Centurian. The other argument of the counsel for the plaintiff that defendant has admitted that he is not aware about the contents of the written statement is also of no use as the defendant when asked in Hindi in the cross examination has specifically stated that it is mentioned in the written statement that the defendant is not selling the impugned products alleged in the plaint. The court has to consider the literacy level of the defendant and his -7- contention about the basic content of the written statement is sufficient to hold that he is aware about the contents, more so when he actually states that the contents were explained to him in vernacular by his counsel before he signed it. Otherwise also, as already said, it is for the plaintiff to prove its case and plaintiff cannot take any benefit from the contents of the written statement unless there is a specific admission of a fact. The plaintiff for reasons best known to the plaintiff, did not execute the local commission and further did not prove on record the alleged infringement of its trademark by the defendant or use of the trademark 21st Centurian by the defendant. Even the judgments relied upon by the plaintiff are of no help to the plaintiff as the same do not apply to the facts of the present case. The plaintiff has failed to prove any of these issues and all are decided against the plaintiff.

10. The onus of proving this issue was on the defendant. As already discussed in the above issues that the plaintiff has failed to prove that the defendant has infringed its trademark and as a result, the defendant has proved that the suit is based on frivolous and concocted facts. Ld. Counsel for the defendant Ms. Devika rightly argued that not only the suit is false and frivolous but has also been filed by a person, who was not duly authorized as on the date of filing of the suit. This issue, therefore, is decided in favour of the defendant.

11. The onus of proving this issue was on the parties. The plaintiff has failed to prove that he is entitled to any relief whereas the defendant has proved that suit is without any cause -8- of action and is based on frivolous grounds. In facts, defendant is entitled to the cost of the suit and issue is decided in favour of the defendant.

RELIEF:

12. In view of my finding given on the issues, the plaintiff is not entitled to any relief. The suit is dismissed with a cost of Rs. 50,000/- payable by the plaintiff to the defendant.

13. Copy of the judgment be sent to both the parties by electronic mode, if available or otherwise.

14. Decree sheet be prepared.

15. File be consigned to Record Room.

AMIT KUMAR KUMAR Date:

2023.11.07 14:02:44 +0530 (AMIT KUMAR) District Judge, Comm. Court-08 Central, Tis Hazari Courts Extension Block, Delhi/07.11.2023 -9-