Delhi High Court - Orders
Upl Limited vs Sikko Industries Ltd on 4 February, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~32(Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 275/2021, I.A. 1955/2022, I.A. 1956/2022 & I.A.
1984/2022
UPL LIMITED ..... Plaintiff
Through: Ms. Rajeshwari H & Mr. Tahir
A J, Advs.
versus
SIKKO INDUSTRIES LTD. ..... Defendant
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 04.02.2022 (By Video-Conferencing on account of COVID-19) I.A. 1955/2022 (under Order I, Rule 10 of CPC, 1908, read with Section 151 of CPC, 1908)
1. By this application, the plaintiff seeks to implead Ekopak India Pvt. Ltd., the manufacturer of the allegedly infringing design, as Defendant 2. The application avers that Defendant 1 has informed the plaintiff that the manufacturer of the containers involving the allegedly infringing design is Defendant 2.
2. As such, Defendant 2 is obviously a necessary party to the present lis.
3. The application is accordingly allowed. Ekopak India Pvt. Ltd. is impleaded as Defendant 2. The amended memo of parties filed with Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 275/2021 Page 1 of 5 Signing Date:06.02.2022 12:33:18 the application is taken on record.
I.A. 1956/2022 (under Order VI, Rule 17, read with Section 151 of CPC, 1908)
4. This application, under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC), at the instance of the pllaintiff, seeks to amend the plaint, so as to incorporate assertions, allegations and asseverations pertaining to Defendant 2, who, the pllaintiff has come to learn, is the manufacturer of the containers involving the allegedly infringing design.
5. Clearly, the plaintiff is entitled to amend the plaint as sought and issuance of any notice on this application would be unnecessary.
6. Accordingly, the amendments as sought in this application are allowed. The amended plaint as filed with the application is taken on record and shall be read in place of the original plaint.
7. Issue summons on the amended plaint to the Defendants.
8. Written statement, accompanied by affidavit of admission and denial of the documents, filed by the Plaintiff, be filed by the Defendant within four weeks, with advance copy to learned Counsel for the Plaintiff, who may file replication thereto, if any, accompanied by affidavit of admission and denial of the documents filed by the defendants, within two weeks thereof.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 275/2021 Page 2 of 5 Signing Date:06.02.2022 12:33:189. List for completion of pleadings on the amended plaint, admission and denial of documents and marking of exhibits before the learned Joint Registrar, on 19th April, 2022.
10. IA 1956/2022 stands allowed accordingly.
I.A. 1984/2022 (under Order XXXIX, Rules 1 & 2, read with Section 151 of CPC, 1908)
11. This Court has already, on 4th June, 2021, in the present case, held that a prima facie case of infringement, by Defendant 1, of the registered design of the Plaintiff exists and has, therefore, granted ad interim injunction, restraining the Defendant 1 from releasing, in the market, any product, including "SIKPHOS" (the product being marketed by Defendant 1), in the allegedly imitative container, bearing a design which is deceptively similar to the registered design of the plaintiff.
12. Defendant 1 has, subsequently informed the plaintiff that the containers are being manufactured by Defendant 2.
13. For that reason, I have, by orders passed today, permitted impleadment of Defendant 2 in the present proceedings and amendment of the plaint to incorporate assertions against Defendant 2.
14. It is obvious that the injunction order already passed on 4th June, 2021 would also have to extend to Defendant 2.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 275/2021 Page 3 of 5 Signing Date:06.02.2022 12:33:1815. As such, issue notice in IA 1984/2022 to Defendant 2 returnable before the Court on 26th April, 2022.
16. 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 before the next date of hearing.
17. Till the next date of hearing, Defendant 2, its directors, employees, officers, servants, agents and all others acting on or its behalf are restrained from manufacturing, selling, distributing, advertising, importing, exporting, offering for sale or in any other manner, directly or indirectly dealing in any product/bottle/containers, infringing the plaintiffs' registered trademark 325205-001, including the container in which the product "SIKPHOS", is manufactured and marketed.
18. Defendant 2 is also directed to place on record, along with its reply to the present application, the details regarding the number of containers, bearing the allegedly infringing design manufactured by it and sold in the market as well as sales realisation from such sale, as well as the quantity of containers with the said design which are presently lying uncleared at the premise of Defendant 2 or at the premise of any of its agents, servants or associates.
19. As this order has been against Defendant 2 ex parte, the plaintiff would be required to comply with the provisions of Order XXXIX Rule 3 of CPC, 1908. Compliance may be made by Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 275/2021 Page 4 of 5 Signing Date:06.02.2022 12:33:18 electronic mode within a period of two weeks from today.
20. Re-notify before the Court on 26th April, 2022.
C.HARI SHANKAR, J FEBRUARY 4, 2022 SS Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 275/2021 Page 5 of 5 Signing Date:06.02.2022 12:33:18