Delhi District Court
Corporate Office At vs Radha Kishan Gobind Ram Limited on 10 March, 2022
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IN THE COURT OF MS NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-002674-2020.
CS (Comm) No. 377 of 2020.
M/s RSPL Limited
119-121 (Part), Block P&T, Fazal Ganj,
Kalpi Road, Kanpur-208012 (U.P).
Corporate Office At :
3rd Floor, C-1, 2 and 3,
Netaji Subhash Place,
Wazirpur District Centre,
Pitampura, New Delhi-110034.
......................................................................................Plaintiff.
Versus
Radha Kishan Gobind Ram Limited
C-23, Lawrence Road, Industrial Area,
Delhi-110035.
...............................................................................................................Defendant.
Date of institution of the case : 01.07.2020
Date of consideration of the case : 02.07.2020
Date of conclusion of the final arguments : 10.03.2022
Date of judgment : 10.03.2022
Appearances : Mr. Anil Kumar Sahu and Mr. Ayush Dixit, counsel for the
plaintiff.
Defendant was proceeded ex parte vide order dated 17.12.2020.
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CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 1 of 19 ::-
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JUDGMENT
1. This is a suit under sections 134 and 135 of Trademarks Act, 1999 (hereinafter referred to as the TM Act) and section 55 of Copyright Act, 1957 (hereinafter referred to as the CR Act) for permanent injunction restraining infringement; passing off; delivery up; damages, rendition of accounts, etc., filed by M/s RSPL Limited (hereinafter referred to as the plaintiff) against Radha Kishan Gobind Ram Limited (hereinafter referred to as the defendant).
2. The plaintiff has filed the suit along with an application under order 39 rules 1 and 2 read with section 151 of the Civil Procedure Code (hereinafter referred to as the CPC).
3. It has been averred by the plaintiff that it is duly incorporated under the provisions of Indian Companies Act, 1956 (hereinafter referred to as the IC Act) and is engaged in the business of inter alia manufacturing and marketing of washing soap, detergent powder, detergent cake, salt, shampoo, hair oil, toothpaste, moisturizer, shaving cream, liquid hand wash, floor cleaner, liquid detergent, toilet cleaner and other allied and cognate goods (hereinafter referred to as the business and goods respectively). In the year 1955, the plaintiff (through predecessor) honestly and bonafidely adopted and started using the Trade mark/DEVICE OF GHARI/WATCH/CLOCK in relation to soap. The plaintiff (through predecessor) honestly and bonafidely adopted and started using the trademark/label GHARI/GHADI (word) along with Device of GHARI/WATCH/CLOCK for washing soap in 1975, for CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 2 of 19 ::-
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detergent cake in 1988 and for detergent powder in the year 1990 and have used the same openly and extensively. By the passage of time, the business activity of the plaintiff also expanded into various other goods and services viz. cosmetics, FMGC, footwear, wind energy, real estate and dairy products. The said trade mark/labels/trade dress GHARI/GHADI Label (hereinafter referred to as the said trade mark/labels/trade dress) bears original artistic features of placement, distinctive getup, makeup, lettering style etc. The term said Trade Mark/Label includes the artistic features involved therein. The word GHARI/GHADI, the Device of GHARI/WATCH/CLOCK as well as the artistic features involved the said trade mark GHARI/GHADI Label are all both individually and also collectively are essential, material and distinguishing features of the said trademark GHARI/GHADI Label. The plaintiff has honestly and bonafidely adopted and is using its GHARI/GHADI /label (hereinafter referred to as the GHARI/GHADI label). The plaintiff is the owner and proprietor of the same. The plaintiff, on account of honest, bonafide and prior adoption and continuous use of the said GHARI/GHADI label enjoys monopoly over the same. The artistic work involved in the plaintiff's said trademark GHARI/GHADI Label is an original art work within the meaning of the CR Act and registered under CR Act under no. A-127003/2018, A-60520/2002, A-60521/2002, A-61215/2002, A- 61216/2002, A-67662/2004, A-80077/2007 and A-80078/2007 and the plaintiff is the owner of the same. The plaintiff also displays its product under the said trademark/Label on its website www.gharidetergent.com. The trade label and colour combination are most essential part of the plaintiff's packaging. The plaintiff has been continuously promoting the CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 3 of 19 ::-
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business and goods under the said trademark/label along with its trademark GHARI/GHADI through different means and modes including visual, audio and print media viz. through advertisement in leading newspapers, magazines, advertisement in televisions, trade literatures, trade hoardings and boards etc. The plaintiff has already spent enormous amounts of money on its publicity. In consequence thereof and having regard to the above facts including to the excellent quality and the high standards of the plaintiff's product the trade level of the plaintiff enjoys solid, enduring and first class reputation in the markets. The said label of the plaintiff is the indispensable identity of the plaintiff well known product Ghadi detergent. The said GHARI/GHADI label has already become a distinctive indicium of the plaintiff and the plaintiff's business and goods there under. The general public, traders and dealers identifies and distinguishes the said GHARI/GHADI Label with the plaintiff and the plaintiff's goods and business alone.
4. It is further averred by the plaintiff that the defendant has morphed, fabricated, concocted and forged video/URL/Weblink https://www.facebook.com/1394630480649188/posts/2838325266279695 / on the social networking website of Facebook Inc., against the plaintiff, in order to ensure that irreparable loss and injury is occasioned to the reputation, goodwill and business of the plaintiff. The plaintiff in the last week of June, 2020 came to know about uploading/sharing/dissemination/publication/circulation of morphed, fabricated, concocted and forged video/URL/Weblink against the plaintiff as available on different social media platforms including WhatsApp, CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 4 of 19 ::-
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which has caused irreparable loss and harm to the goodwill of the plaintiff which resultantly caused irreparable loss of business to the plaintiff. By morphing and fabricating the original video of the plaintiff in the impugned video/URL/Weblink, the defendant is further guilty of infringing the registered trademark/label and registered copyright of the plaintiff. The defendant is not the original owner and/or proprietor of the impugned video/URL/Weblink and has adopted and is so using the same by morphing, fabricating, concocting and forging the original video of the plaintiff and doing it without the leave and license of the plaintiff. The defendant has no right to use it in any manner in relation to its impugned activities or for any other reasons whatsoever being in violation of the plaintiff's rights therein. The dishonesty of the defendant is apparent from bare perusal of the impugned video/URL/Weblink.
5. The plaintiff has further averred that due to the defendant's impugned activities, the plaintiff is suffering tremendously in business and goodwill and the plaintiff said proprietary rights are being reduced to a nullity and being violated. Therefore, the present suit has been filed by the plaintiff as it is aggrieved due to the misconduct of the defendant.
6. The case and claim of the plaintiff has been elaborated in the paragraphs numbers 1 to 23 of the plaint and the role and misconduct of the defendant has been elaborated in paragraphs numbers 24 to 26 of the plaint. The main grievance of the plaintiff is voiced in paragraphs numbers 27 to 31. of the plaint. The cause of action and the jurisdiction (territorial and pecuniary) have been detailed in in paragraphs numbers 32, 33 and 34 CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 5 of 19 ::-
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respectively of the plaint.
7. The plaintiff, in its prayer elaborated in paragraph number 35 of the plaint, has prayed as follows :
(a) for a decree of permanent injunction whereby directing the defendant to permanently take down, remove, or block/restrict access to the impugned video/URL/weblink from all social media platforms including Youtube, Facebook, Instagram, Whatsapp, etc and/or any other active or similar videos/URLs/weblinks which contain or purport to contain, the morphed, fabricated, concocted and forged video/weblink/URL or part thereof posted on any aforesaid social media platforms, and also from all media in the control of the defendant across the globe, including but not limited to defendant website, web pages, mobile application, etc or from doing any other acts or deeds amounting to or likely to:
(i) infringing the plaintiff's registered trademark GHARI/GHADI trade dress [as stated above].
(ii) passing off of the plaintiff's well known trademark GHARI/GHADI trade dress [as stated above].
(iii) infringement of registered copyright in the artistic
work involved in the plaintiff's artistic
features/label/packaging/trade dress of
GHARI/GHADI label.
CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 6 of 19 ::-
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(iv) Infringement of copyright of the plaintiff in the said
video
(b) passing a decree of mandatory injunction in favor of the plaintiff restraining the defendant, its agents, officers, assigns, representatives from thereby directing the defendant to forthwith block/remove the impugned video/ weblink/URL from their websites, web pages, mobile application, etc. across the globe.
(c) passing a decree of permanent and mandatory injunction in favor of the plaintiff and against the defendant thereby directing the defendant to block/remove the impugned videos from its websites/portals across the globe on receipt of any complaint in future from the plaintiff in regard to the videos/URLs/Weblinks containing same and/or similar subject-matter; and also from all media in the control of the defendant, including but not limited to their websites, mobile applications, another social media platforms.
(d) for a decree of damages the relief is provisionally valued for the purposes of court fee at Rs. 25,00,000/- qa the plaintiffs and ad valorem court fees of Rs 26,744/- is affixed thereon. The plaintiff undertake to make up the deficiency of court fee, if any, once the actual damages are ascertained and awarded to the plaintiff.
(e) for an order for cost of proceedings, and
(f) for such order and further order as this Court may deem fit.
CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 7 of 19 ::-
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8. I have heard the arguments at length and have given my careful thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
9. During the course of arguments, the counsel for the plaintiff has submitted that the defendant has already taken down, removed, or blocked/restricted the access to the impugned video/URL/weblink from all social media platforms including Youtube, Facebook, Instagram, Whatsapp, etc and/or any other active or similar videos/URLs/weblinks in the Country domain which contain or purport to contain, the morphed, fabricated, concocted and forged video/weblink/URL or part thereof posted on any aforesaid social media platforms, and also from all media in the control of the defendant. After the passing of order dated 02.07.2020, the defendant has stopped the infringement and has stopped the violating the rights of the plaintiff.
10.Vide order dated 02.07.2020, the ex parte injunction was granted in favour of the plaintiff and against the defendant and matter is listed for issuance of summons and notice of the application XXXIX rules 1 and 2 read with section 151 of the CPC to the defendant. On 15.07.2020, the counsel for the plaintiff has filed an application under order 151 of the CPC for providing e-mail and whatsapp number of the defendant.
11. The defendant was eventually served on 11.12.2020 through whatsapp and email but did not appear on 17.12.2020. Despite having waited till 03:00 pm and despite several calls since morning, none appeared on CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 8 of 19 ::-
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behalf of the defendant and it was proceeded ex parte. The matter was then adjourned for ex parte evidence.
12.On 18.03.2021, an application under order XIII-A of the CPC was filed on behalf of the plaintiff. The same was withdrawn vide order dated 06.12.2021.
13.On 06.12.2021, an application under order VIII rule 10 read with section 151 of the CPC was filed on behalf of the plaintiff. The same was withdrawn vide order dated 16.12.2021.
14.The ex parte evidence has not been recorded, as elaborated in the order dated 08.03.2022, in terms of the judgments of the hon'ble High Court of Delhi in Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226. It was observed therein that where the plaint has been verified and also supported with the affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightaway and the judgment is to be passed on the basis of the material on record.
15.I have heard the arguments at length and have given my careful thought and prolonged consideration to the material on record, relevant provisions of law CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 9 of 19 ::-
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and the precedents on the point.
16.I have also carefully perused the certificate of fees which is for an amount of Rupees One Lac and One Hundred only (Rs.1,00,100/-) and the certificate of expenses which is for an amount of Rupees Twenty Six Thousand, Eight Hundred and Sixty Six only ( Rs.26,864/- + Rs.2/-= Rs.26,866/-).
17.The defendant, being ex parte, has not filed its written statement along with statement of truth, affidavit of admission and denial of documents as well as its own documents within the stipulated period of 30 days from its service and even upto 120 days from the date of its service along with an application for condonation of delay.
18.The averments made in the plaint (which is supported with the affidavit and statement of truth) remain uncontroverted, unrebutted and unchallenged and can be presumed to be admitted as correct, as the defendant, which is ex parte, failed to appear before the Court, failed to file his written statement along with statement of truth, affidavit of admission and denial of documents of the plaintiff and failed to file its own documents as well as any application for condonation of delay within the stipulated period from the date of its service. The defendant has failed to contest the case or put up any defence.
19.As such, the Court shall be within its discretion to pronounce the judgment against such defendant which is as per law under order VIII rule 10 of the Civil Procedure Code (hereinafter referred to as the CPC) which reads as follows:
CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 10 of 19 ::-
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"In case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn".
20.There is no reason to disbelieve the averments made in the plaint and the relevant documents which have been filed along with the plaint. The contents of the plaint and documents on record appear to be of an unimpeachable character. This appears to be a clear case of negligence and inaction on part of the defendant as it failed to appear before the Court despite due service and contest the case.
21.The pictorial comparison of the plaintiff's promotional video viz a viz the impugned video of the defendant which are reproduced in the plaint have been carefully perused. The same are as follows :
Original Video consisting Impugned video consisting Trademark/label of the impugned trademark of the Plaintiff defendant CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 11 of 19 ::-
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CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 12 of 19 ::-
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22.It appears that the impugned work is an actual copy of the plaintiff‟s advertisement/cinematograph film. It also appears that an actual copy of the copyrighted film has been made by a process of duplication. The video must have adversely affected the image, reputation and goodwill of the plaintiff garnered over the years and the sales of the plaintiff as the impugned video is meant to create the confusion among the general public and malicious depictions against the image and goodwill of the plaintiff. It CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 13 of 19 ::-
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appears that the morphed, fabricated, concocted and forged impugned video has been levelled with the mere intention to tarnish and malign the goodwill and reputation earned by the plaintiff through its constant tireless efforts throughout the years. It also appears that the impugned video is depicted with the intent to gain the alleged popularity and/or more viewer ship/subscribers by adopting and/or copying the promotional video of the plaintiff as well as to cause immense loss in business and reputation to the plaintiff. It further appears that the defendant has singled out the plaintiff by creating/uploading/sharing/disseminating/circulating the morphed, fabricated, concocted and forged video/URL/Weblink against the plaintiff, in order to ensure that irreparable loss and injury is occasioned to the reputation, goodwill and business of the plaintiff. The morphed, fabricated, concocted and forged video/URL/Weblink that has been created/uploaded/shared/disseminated/circulated on the facebook is still continue to be available for public viewing on other social media platforms such as whatsapp, etc. in India and as well as abroad is thereby causing immense damage to the reputation of the plaintiff. The submission made on behalf of the plaintiff seems to be correct that the morphed, fabricated, concocted and forged video/URL/Weblink is available on the internet is accessible worldwide causing unwarranted reputational harm to the plaintiff for no fault of the plaintiff. The impugned video uploaded/shared/disseminated/circulated on the portal of facebook and other social media platform is easily accessible not only in India but across the globe. The consistent campaign of uploading/sharing/dissemination impugned video is resulting in lowering CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 14 of 19 ::-
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the reputation, goodwill in the eyes of general public which ultimately leads to loss of business. Since the defendant, in blatant disregard for the rule of law and by misusing the process of law, has left no stone unturned to vilify, malign and denigrate the goodwill and business of the plaintiff in the eyes of the general public thereby causing wrongful losses to the plaintiffs and wrongful gains to itself. The continued transmission of the impugned video and accessibility of it by the public at large would gravely affect the general public as they would be under impression that the plaintiff might copied the work of the defendant and/or the defendant has any close association with the plaintiff which will subsequently affect the future endeavors of the plaintiff with respect to their continuing growth of the business. It is apparent that the said impugned video/URL/Weblink is not in any manner in the interest of general public and the same has been aired willfully and deliberately with the intention to earn undue benefits illegally and illicitly by riding upon the hard earned income of the plaintiff and adversely affect the sales of the products of the plaintiff.
23.The plaintiff must have suffered and is likely to further suffer irreparable harm and injury with regard to the goodwill, reputation and loss of business of plaintiff. Therefore, monetary compensation alone would not be sufficient to address the continuing harm resulting from acts of infringement of registered trademark and copyright of the plaintiff. The contents of the Video/URL/Weblink are morphed, fabricated, concocted and forged and there is an immediate pressing injury to plaintiff. The CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 15 of 19 ::-
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plaintiff has expressed its apprehension that the defendant will persist with their malicious conduct and if the said impugned video is not removed or blocked, the defendant will continue to circulate the impugned video which would result in immediate and irreparable injury to the plaintiffs' goodwill, and business of the plaintiff. By adoption and thereby morphing/fabricating the video consisting registered trademark/label/trade dress of the plaintiff in the impugned video/URL/Weblink, the defendant is further guilty:-
a) infringing the plaintiff's registered trademark GHARI/GHADI trade dress;
b) passing off of the plaintiff's well known trademark GHARI/GHADI trade dress;
c) infringement of registered copyright in the artistic work involved in the plaintiff's artistic features/label/packaging/trade dress of GHARI/GHADI label.
d) infringement of copyright of the plaintiff in the said video
e) besides, the defendant is further guilty of falsification and unfair and unethical trade practices.
24.The averments made in the plaint remain uncontroverted, unrebutted and unchallenged as the defendant, which is ex parte, failed to appear before the Court and contest the case. All the relevant documents have been filed along the plaint.
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25.As regards the prayer elaborated in paragraph number 35 (a) to (c) of the plaint, the plaintiff has been able to show with the contents of the plaint, documents annexed, video etc. that it is entitled to a decree of permanent and mandatory injunction.
26.As regards the prayer elaborated in paragraph number 35 (e) of the plaint, the attorney fees and expenses of the suit are being taken into consideration.
27.However, regards the prayer elaborated in paragraph number 35 (d) of the plaint, no document has been produced on behalf of the plaintiff to show the extent and quantum of damages. Therefore, notional damages are being calculated on the basis of the Court fees deposited by the plaintiff.
28.Consequently, this commercial case is hereby decreed in favour of the plaintiff and against the defendant in terms of the prayer, as elaborated in paragraph number 35 (a) to (c) of the instant suit.
29.Further, towards the damages, in terms of the prayer, as elaborated in paragraph number 35 (d) of the plaint, the Court fees deposited by the plaintiff i.e. Rupees Twenty Six Thousand, Seven Hundred and Forty Four only (Rs.26,744/-) is rounded off to Rupees Twenty Seven Thousand only (Rs.27,000/-) and the defendant is also liable to pay the same to the plaintiff.
30.Further, as regards the costs, in terms of the prayer, as elaborated in paragraph number 35 (e) of the plaint, and expenses, as the plaintiff has CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 17 of 19 ::-
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filed the certificate of fees and the certificate of expenses, the same are being taken into consideration and the defendant is also liable to pay the same to the plaintiff. The plaintiff has filed the certificate of fees for an amount of Rupees One Lac and One Hundred only (Rs.1,00,100/-) and the certificate of expenses for an amount of Rupees Twenty Six Thousand, Eight Hundred and Sixty Six only ( Rs.26,864/- + Rs.2/-= Rs.26,866/-), the defendant is also liable to pay the same to the plaintiff.
31.Accordingly, the case is hereby decreed in favour of the plaintiff and against the defendant in terms of the prayer, as elaborated in paragraph number 35 (a) to (c) of the instant suit; along with damages for a sum of Rupees Twenty Seven Thousand only (Rs.27,000/-); and costs and expenses of Rupees One Lac and One Hundred only (Rs.1,00,100/-) and amount of Rupees Twenty Six Thousand, Eight Hundred and Sixty Six only ( Rs.26,864/- + Rs.2/-= Rs.26,866/-).
32.The defendant is liable to make the payment of the above stated amounts in favour of the plaintiff.
33.The decree sheet be prepared accordingly. The prayer, as elaborated in paragraph number 35 (a) to (c) of the instant suit shall also be part of the decree sheet.
34.In compliance to the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up to date by the Commercial Courts Act, 2015), a CS (Comm) No. 377 of 2020. M/s RSPL Limited v. Radha Kishan Gobind Ram Limited. -:: Page 18 of 19 ::-
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copy of the judgment be issued to both the parties to the dispute through electronic mail, if the particulars of the same have been furnished or otherwise.
35.After completion of formalities, the Junior Judicial Assistant/Ahlmad of the Court shall consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 10th day of March, 2022. District Judge Commercial Court-01, Shahdara, Karkardooma Courts, Delhi. 10.03.2022.
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