Delhi High Court - Orders
Bolt Technology Ou vs Ujoy Technology Private Limited & Anr on 24 March, 2023
Author: C. Hari Shankar
Bench: C.Hari Shankar
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 582/2022 & I.A. 21023/2022
BOLT TECHNOLOGY OU ..... Plaintiff
Through: Ms. Swathi Sukumar, Mr.
Essenese Obhan, Ms. Ayesha Guhathakura,
Mr. Naveen Nagarjuna and Mr. Ritik
Raghuvanshi, Advs.
versus
UJOY TECHNOLOGY PRIVATE LIMITED & ANR.
..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 24.03.2023 I.A. 21023/2022 (under Order XXXIX Rule 2A of CPC)
1. This application under Order XXXIX Rule 2A of the Code of Civil Procedure 1908 (CPC), alleges contumacious and wilful disobedience, by the defendant, of order/judgment dated 23rd November 2022 passed by this Court in the present proceedings.
2. Paras 8 to 10 of order dated 23rd November 2022 read thus:
"8. Considering that the settlement has not fructified, the interim injunction application would have to be adjudicated on merits. Considering the stand of the rival parties, detailed hearing would he required in the injunction application. Keeping in mind the Board of this Court today, time is insufficient to conclude a full hearing.
9. However, since the Defendants are willing to modify their mark as extracted above, it is directed that without prejudice to the rights and contentions of both the parties, the Defendants' further expansion henceforth shall be by using the mark as suggested Signature Not Verified today. Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 1 of 6 Signing Date:27.03.2023 12:13:50
10. The earlier standalone mark 'BOLT' and the logo used by the Defendants earlier as set out in paragraph 2 above shall henceforth not be used."
3. Ms. Swathi Sukumar, learned Counsel for the plaintiff- applicant, submits that, despite the categorical direction, in the afore- extracted passage in para 10 of from order dated 23rd November 2022, prohibiting further use of the standalone mark BOLT and the logo used by the defendants earlier, the defendants continue to use the said mark. She has drawn my attention, in this context, to the documents at pages 28 to 52 of the application, which evidence usage, by the defendants, of the earlier logo, after passing of the order dated 23rd November 2022. She submits that, in fact, on 30th November 2022, the plaintiff wrote to the defendants, requiring the defendants to discontinue use of the earlier logo in view of order dated 23rd November 2022, but that the defendants in their reply dated 2nd December 2022, responded thus:
"3. The self-serving excerpt from the Hon'ble Court's '23-11- 22' Order reproduced in your Contempt Notice (para 10) does not reflect a balanced description of the letter and spirit of the Court's 23-11-22 Order or the parties' understanding of it. For completeness and context, we draw your attention the preceding para 9 of the 23-11-22 Order which is reproduced below for convenience:
"However, since the Defendants are willing to modify their mark as extracted above, it is directed that without prejudice to the rights and contentions of both the parties, the Defendants' further expansion henceforth shall be by using the mark as suggested today.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 2 of 6 Signing Date:27.03.2023 12:13:50
4. Your Contempt Notice has conveniently omitted inter-alia the paragraph reproduced by us above, in order to paint a one-sided picture of what was directed by the Hon'ble Court. It is further pertinent to mention that the said 23-11-22 Order was uploaded online only on 29-11-2022.
5. To set the record straight, in sum, our Clients only undertook conducting future expansion using the new "BOLT.EARTH" styled mark as presented above. In the absence of a specific injunction by the Hon'ble Court, your Client has no right to impose a change of trade name on the existing products/services/platforms (including physical chargers, website or mobile application) provided by our Client. Our Clients have fully complied with the 23-11-22 Order which can be seen in the pictures enclosed with this reply.
6. It is further to bring into your knowledge that app updates may take up to 7 days or longer as per the Playstore policies of Google. In any event, all claims by your Client of exclusive rights to use the word "Bolt" have been vehemently and repeatedly denied. Given that inter-alia, the question of existence of your Client's goodwill, if any, in India is still sub-judice, it is surprising to see you presume exclusive rights in absence of any registered trademark or favorable order in India, and in turn, allege misrepresentation against our Clients."
(Emphasis supplied)
4. IA 13529/2022 came to be disposed of by Bench vide judgment dated 24th February 2023. Against the said order/judgment, FAO(OS) 45/2023 has been preferred before the Division Bench of this Court in which the following statement/undertaking of learned Counsel for the defendants has been noted:
"Learned senior counsel for the respondents-defendants fairly states that his client is complying with and shall continue to comply with the order dated 23rd November, 2022 passed by the learned Single Judge of this Court till the disposal of the present appeal. The statement/undertaking given by learned senior counsel for the respondents-defendants is accepted by this Court and the respondents-defendants are held bound by the same.
In the event either of the parties is of the view that the interim arrangement is not being complied with, it shall be at Signature Not Verified liberty to file appropriate proceedings in accordance with law."Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 3 of 6
Signing Date:27.03.2023 12:13:50
5. Ms. Swathi Sukumar submits that, even after the passing of the aforesaid order of the Division Bench, the defendants continue to use the impugned mark, for which purpose she has drawn my attention to the documents at page 25 to 40 of the documents filed with the rejoinder in this application.
6. To a query in this regard being raised by the court, Mr. Naman Maheshwari, learned Counsel for the defendants, submits that the order dated 23rd November 2022 merely directed that further expansion of the defendants be carried out only by using the mark. Any other interpretation, he submits, would amount to treating the order dated 23rd November 2022 as disposing of IA 13529/2022.
7. The submission is merely to be stated to be rejected. Mr. Naman Maheshwari's submission clearly ignores para 10 of the order dated 23rd November 2022 which absolutely proscribes the further use of the standalone mark BOLT as well as the earlier logo which was being used by the defendants.
8. At this juncture, Mr. Naman Maheshwari interjects and requests the court to record his submission that para 10 of the order dated 23rd November 2022 is required to be read only in conjunction with paras 8 and 9 as, otherwise, there was no need to issue the directions contained in para 9 of the said order and that the court was aware of the fact that it was dealing with the interim direction with respect to further expansion of the defendants.
9. With due respect, accepting such a submission would amount to a perverse understanding of the order dated 23rd November 2022. A Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 4 of 6 Signing Date:27.03.2023 12:13:50 litigant cannot rewrite the order passed by the court in the manner as he deems most appropriate. Nor can categorical directions issued in an order be ignored by interpretative calisthenics.
10. There is absolutely no ambiguity about the direction contained in para 10 of the order dated 23rd November 2022. The order does not make the said direction subject to any other paragraph thereof. There is a clear proscription against the defendants using, henceforth, the earlier standalone mark BOLT and the earlier logo used by the defendants. For reasons best known to them, the defendants have chosen, in the manner in which they have acted, their response dated 2nd November 2022 to the legal notice of the plaintiff, as well as in the submissions advanced in Court today, to completely ignore para 10 of the order dated 23rd November 2022, as if it had never been penned.
11. Though there is none, if the defendants were of the view that any clarity in the order dated 23rd November 2022 was required, they could have applied for the said purpose. They did not do so.
12. The submission being made today is, therefore, clearly in the nature of an afterthought so as to avoid the consequences of contumacious disobedience of an order passed by the court.
13. That the disobedience, by the defendants, of the order dated 23rd November 2022 passed by this Court cannot be treated as innocent is further manifested by the fact that, even after the order dated 10th March 2023, on which date the defendants undertook, before the Division Bench of this Court, to abide by the order dated 23rd November 2022, the defendants continue to use the impugned earlier mark and logo, in violation of para 10 of the said order.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 5 of 6 Signing Date:27.03.2023 12:13:5014. Clearly, the disobedience, by the defendants, of the order dated 23rd November 2022, cannot be regarded in any manner of speaking, as innocent. It is clearly contumacious in nature.
15. The court, accordingly, holds the defendants guilty of having been contumaciously and wilfully disobeyed the order dated 23rd November 2022 passed by this Court in the present proceedings.
16. Re-notify on 14th April 2023 to hear submissions on the aspect of sentence.
17. Mr. Jyotiranjan Harichandan, Managing Director of the defendants is directed to be personally present before the court on the next date of hearing.
C. HARI SHANKAR, J MARCH 24, 2023 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 582/2022 Page 6 of 6 Signing Date:27.03.2023 12:13:50