Delhi District Court
Deepak Food Products vs Deepak Sharma on 2 September, 2024
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH
SAKET COURTS, DELHI
CS (Comm) No. : 446/23
CNR No. DLST01-007228-2023
In the matter of :-
M/s. Deepak Food Products
Proprietorship firm of Mr. Sachin Sharma
L-1st-1885/3, Near Asthal Mandir
Sangam Vihar, New Delhi-110080 ............Plaintiff
Vs.
Sh. Deepak Sharma
L-1st-1885/3, Near Asthal Mandir
Sangam Vihar, New Delhi-110080 .........Defendant
Date of institution of the case : 28.07.2023
Date of final arguments : 17.05.2024, 29.07.2024
and 02.09.2024.
Date of judgment : 02.09.2024
JUDGMENT
1. This is suit for permanent injunction to restrain passing off, dilution and unfair trade competition and for damages U/s 27(2) r/w Section 134 of the Trademarks Act 1999 filed by plaintiff against the defendant on the facts that father of plaintiff was in the business of selling Rewari-chana and petha under the name and style as M/s. Deepak Enterprises and plaintiff was helping his family business since childhood upto 2010. In the year 2011, plaintiff established factory for manufacture of products at Sangam Vihar, Delhi. In 2020, plaintiff adopted mark DEEPAK ROYAL BAKERY for manufacturing and whole sale of various types of namkeen and CS (Comm) No. 446/23 1/20 biscuits. The mark is distinctive and different from all others in the market and gives the plaintiff's products a distinctive look and feature that is immediately visible to the consumers.
2. Over the course of time, plaintiff has developed a loyal and consistent clientele for its products sold under the mark. The products sold under the mark are exclusively identified with the plaintiff and are stocked at a number of outlets in Delhi NCR and even outside the State. Plaintiff has incurred huge expenses for advertising and marketing the products under the mark and has spent approx. Rs. 5,00,000/- on advertisement. Details of Plaintiff's yearwise sales turnover under the mark was also given in plaint, which is as follows:
Sl. Financial Year Turnover Advertising
Cost
1. 2020-21 Rs. 1,27,86,942/- Rs. 58,895/-
2. 2021-22 Rs. 4,34,53,222/- Rs. 65,821/-
3. 2022-23 Rs. 6,28,74,814/- Rs. 86,719/-
3. As further stated, defendant also started its manufacturing unit/factory under the name and style as Deepak Food Products and is producing, manufacturing the same products but misusing the trademark and FSSAI license which is completely illegal.
4. Plaintiff, as stated, is now a well-known entity in India with transborder reputation and is well recognized as one of the premier manufacturers of Namkeen and Biscuits in India. Plaintiff is a regular supplier of above products to various shops and outlets. Plaintiff has a number of registrations, licenses and permissions standing in its favour that clearly establish it as the sole user of the mark.
CS (Comm) No. 446/23 2/205. On 17.04.2021, plaintiff applied for registration of mark as its trade mark which is currently pending before the Registrar of trademarks. Plaintiff, as further stated, is the owner and proprietor of abovesaid mark on account of honest, bonafide, prior adoption and continuous and commercial use thereof, whereas defendant has never been engaged in any productive business or activity and has always been dependent on other family members. Recently seeing the success of plaintiff's business, defendant developed jealousy and deceptively started selling namkeen and biscuit products under the plaintiff's brand, trade name and mark. Defendant's products are dressed and designed with the specific intention of copying the plaintiff's brand, trade name and mark in order to deceive the consumers and free-ride on the goodwill associated with the plaintiff's brand. Further, defendant is using the same trade channels as the plaintiff and his goods are sold by the same distributors/dealers/wholesalers/retailers. Advertisements and promotional materials are also advertised by the defendant in papers commonly distributed in the plaintiff's area of operation. The said act of defendant has caused tremendous confusion in the market and has severely affected the plaintiff's business. Moreover, defendant's products are of very inferior quality, as a result of which, many customers have abandoned the products altogether. Further, defendant has been selling the same items in the open market at a lesser price than the plaintiff, which has led the plaintiff to incur heavy losses both in the form of loss of business and customers.
6. It was further stated that in order to pre-empt the action of plaintiff, defendant filed a false case CS SCJ no. 328/23 before Ld. ACJ, South, Saket Court wherein defendant falsely represented CS (Comm) No. 446/23 3/20 before the court that he has reached at a settlement with plaintiff herein and withdrew the suit vide order dated 24.05.2023, whereas plaintiff was completely unaware about those proceedings and had never entered into any settlement with the defendant. The said act had been undertaken by the defendant only with an ill intent to divert the business of plaintiff towards its inferior products. Legal notice dated 15.07.2023 sent to plaintiff did not yield any result and plaintiff was constrained to file the present suit against the defendant alongwith application U/o 39 Rules 1 & 2 CPC r/w section 151 CPC.
7. Vide order dated 31.07.2023, ex-parte ad-interim injunction was granted in favour of plaintiff and against defendant. After service of summons, counsel for defendant appeared and filed an application under Order 39 Rule 4 CPC, which was allowed. Request of defendant for de-sealing his business premises was allowed with directions that defendant shall not use the plaintiff's FSSAI number and GST number on his products. Ex-parte ad interim injunction granted vide order dated 31.07.2023 in favour of plaintiff was also vacated/set aside vide the same order dated 07.08.2023.
8. Thereafter though written statement was filed by defendant but affidavit of Admission/Denial of documents was not filed despite giving repeated opportunities. Vide order dated 18.03.2024, defence of defendant was struck off.
9. In written statement (though not considered on record), it was stated that the suit filed by plaintiff is liable to be dismissed as the trademark " DEEPAK ROYAL BAKERY" is now registered in the name of defendant vide certificate of incorporation dated 16.08.2023. The said trademark " DEEPAK CS (Comm) No. 446/23 4/20 ROYAL BAKERY", as stated, related to defendant's name. It was submitted that the business was started by their father and the business was named after the elder son. Lateron, when the business was expanded further by defendant, the name of business was changed to " DEEPAK ROYAL BAKERY" and plaintiff joined the business of defendant. They both established a factory for the manufacture of products at Sangam Vihar. Plaintiff registered the GST number and proprietorship under his name fraudulently but defendant did not make any objection due to love and affection for his younger brother. The major work in developing the business, as stated, was done by the defendant. The production and management was exclusively done by the defendant and it is due to the hard work of defendant that the products have been highly appreciated in the market and business of defendant has developed a loyal and consistent clientele all over Delhi-NCR and even outside the state. Expenses incurred on advertisement of the products were also not borne by the plaintiff but by the company " DEEPAK ROYAL BAKERY"
which was a joint family business.
10. As further stated, the trademark was being used by both the parties since the beginning as both of them were running the same business . However, after the oral settlement, it was decided by father of the parties that " DEEPAK FOOD PRODUCTS"
will be handed over to the defendant Deepak Sharma and plaintiff started his business with name " OVENBELLY" at Faridabad which was registered in the name of his wife as "
SAWARIYA FOOD PRODUCTS". Further, the trademark and FSSAI license was not misused by the defendant. It was decided mutually by the parties at the time of oral settlement, that CS (Comm) No. 446/23 5/20 defendant will use the said FSSAI number but after few days of settlement, plaintiff created nuisance and raised dispute on the said FSSAI number, therefore, defendant applied for a new FSSAI number and he got the same on the address at " DEEPAK FOOD PRODUCTS" with FSSAI License no. as 13323002000446 and is running his business on the said new number. The GST number of joint business was also fraudulently registered by the plaintiff in his name without taking the permission from the defendant and their father. Thereafter, defendant applied for a new GST no. and he got the same as 07CDNPS4824E1ZA.
11. It was further stated that the plaintiff's application for registration of the mark is currently pending which has also been objected by the Registrar Department. Plaintiff is not the sole owner of business and after the partition of the business, only the defendant is the sole owner of the business. Therefore, no question arises about the confusion in the minds of the customer regarding the mark, brand, trade dress and design as the mark of said business belongs to defendant after the partition and plaintiff had agreed for the settlement.
12. It was denied that a false case being CS SCJ 328/23 was filed by defendant before the court of Ld. ACJ/CCJ/ARC (South) or that plaintiff was completely unaware about those proceedings or that he had not entered into any settlement with the defendant. It was stated that in the order dated 01.05.2023 of Ld. Court concerned, presence of plaintiff had been marked. Conversation between both the parties on whatsapp dated 02.05.2023 wherein plaintiff was asking from the defendant that " APPLICATION LAGWAI DI WITHDRAWL KI" was also annexed with the CS (Comm) No. 446/23 6/20 written statement. Vide said oral settlement, machines were also divided in equal proportion between the parties and accordingly half of the machines were shifted from DEEPAK FOOD PRODUCTS to SAWARYA FOOD PRODUCTS.
13. It was further stated that defendant never copied the mark, brand, trade dress and design of plaintiff. In fact, the logo/trademark was designed and finalized by the defendant. After starting separate business, plaintiff had changed the design of logo/trademark on their packaging, photocopy of which was annexed as Annexure-N. It was further stated that plaintiff was running his business with the name of OVENBELLY and on social media, he had clearly mentioned that the " OLD (DEEPAK) & NEW (OVENBELLY)" and INTRODUCING OVENBELLY formally known as " DEEPAK FOOD PRODUCTS DEEPAK". Screenshots of said advertisements were annexed as Annexure-O. It was further submitted that plaintiff had filed the false and fabricated suit and got the interim order dated 31.07.2023 from this court. However, plaintiff had been exposed by defendant before this court which was mentioned in order dated 07.08.2023.
14. Following issues were framed:
1. Whether the plaintiff is entitled for recovery of suit amount, as claimed? OPP
2. Relief.
15. In plaintiff's evidence, Sh. Sachin Sharma, Proprietor of plaintiff firm examined himself as PW1 who filed his evidence by way of affidavit Ex. PW1/A and relied upon following documents:-
CS (Comm) No. 446/23 7/201. Packaging material and Photographs of products as Ex. PW1/1 (colly.) (OSR)
2. Copy of MSME certificate as Mark PW1/2.
3. Rent agreement as Ex. PW1/3 .
4. Copy of sanction of credit facility as Mark PW1/4
5. Copy of credit sanction intimation as Mark PW1/5
6. FSSAI License Number 10020011008199 valid till 26.10.2025 as Mark PW1/6
7. Copy of GST Registration Certificate issued on 19.09.2017 with registration no. 07DZUPS6099M1ZX valid since 01.07.2017 as Mark PW1/7
8. Copies of Balance sheets of the past 3 years as Mark PW1/8 (colly.)
9. Copy of application and its status with the Registrar of Trade Marks as Mark PW1/9.
10. Photographs and original material of the advertisement as Ex. PW1/10 (colly.)
11. Copy of notice as well as tracking report of the speed post as Mark PW1/11
12. Copy of the invoices raised by the defendant to various dealers under the same name and style by misusing the Trade Mark and FSSAI Registration as Mark PW1/12
13. Copy of complaint against the defendant regarding misuse of Trade Mark and FSSAI License with the Commissioner of Food and Safety, Government of NCT of Delhi on 22.07.2023 as Mark PW1/13
14. Copy of complaint and Investigation report of FSSAI officers as Mark PW1/14 CS (Comm) No. 446/23 8/20
16. Matter was not listed for DE as the defence of defendant had already been struck off.
Issue wise findings are as under :-
Issue no.1:
17. Plaintiff has claimed that his father was running business of selling Rewari Chana and Petha and plaintiff was helping his family business since childhood in the name and style of M/s Deepak Enterprises. He shifted from this line of business and established factory for manufacturing various types of Namkeen and Biscuits at Sangam Vihar and in the year 2020, it adopted the mark ' Deepak Royal Bakery' incorporating the name of plaintiff's elder brother out of love and affection. Plaintiff's business found success and its products were highly appreciated in the market. Plaintiff also incurred huge expenses for advertisement and marketing. Turnover for the financial year 2020-21 was Rs. 1,27,86,942/- , turnover for financial year 2021- 22 was Rs. 4,34,53,222/- and for financial year 2022-23 was Rs. 6,28,74,814/-. According to plaintiff, defendant started its manufacturing unit in the name and style as Deepak Food Products and is manufacturing the same products by misusing the trademark and FSSAI License of the plaintiff. Plaintiff also applied for registration of the trademark on 17.04.2021 which is currently pending before the Registrar of Trademarks.
18. According to plaintiff, defendant deceptively started business of namkeen and biscuit products under the plaintiff's brand, trade name and mark, though before January 2023, defendant never conducted any business whatsoever under the mark or bearing any similar trade dress or design. Plaintiff also mentioned about filing of the case by defendant titled as CS (Comm) No. 446/23 9/20 Rameshwar Dayal Sharma and Anr. Vs. Sachin Sharma, before Ld. SCJ/CCJ/ARC (South) wherein plaintiff was never represented before the court of Ld. SCJ, yet defendant on the basis of the averment with regard to settlement between the parties, withdrew the said suit. Plaintiff, as stated, was completely unaware about those proceedings and had not entered into any settlement with the defendant.
19. After the ex-parte stay was granted, application under Order 39 Rule 4 CPC had been moved on behalf of defendant. In the said application, defendant brought on record that the matter pertains to dispute between brothers with regard to family business. In the month of April 2023, according to defendant, plaintiff filed false complaint in Tigri Police Station and after few days i.e. on 24.04.2023 when defendant was not present, plaintiff came to the factory with preparation to shift the machines from Delhi to Faridabad. Plaintiff shifted machines from Sangam Vihar, Delhi to Faridabad, Haryana without informing the defendant as well as their father. On 26.04.2023, defendant filed suit bearing CS SCT/328/23 alongwith application under Order XXXIX 1 and 2 before Ld. Senior Civil Judge and Ld. Senior Civil Judge passed the order of status quo. Plaintiff thereafter moved an application in the said suit, seeking setting aside of the said order. Subsequently based upon the settlement, plaintiff withdrew the said police complaint on 01.05.2023 as well as moved before Ld. Court of Senior Civil Judge.
20. Copy of order dated 01.05.2023 is on record, in terms of which, plaintiff herein had requested to the court concerned for recall of the order dated 26.04.2023 regarding status quo as the perishable material, if not allowed to be sold/disposed, will get CS (Comm) No. 446/23 10/20 ruined and plaintiff will suffer heavy monetary losses. Ld. Court of Senior Civil Judge clarified that the status quo order dated 26.04.2023 qua the factory situated at C-5, Sangam Vihar, Holi Chowk near Caption Farm House, New Delhi was only to the extent that the factory be not shifted from the said premises. Subsequently thereto, it was brought on record of Ld. Senior Civil Judge that matter had been settled between the parties and plaintiff who is defendant herein shall withdraw the said suit.
21. It was mentioned in the application under order 39 Rule 4 CPC that defendant was actively involved in the business before the amicable settlement between the parties and both the parties had different roles in the business. Plaintiff was taking care of marketing whereas defendant was taking care of production, distributorship and supervising the factory etc. Defendant's active involvement in business, as stated, was evident from the fact that his mobile number 9711135150 was printed as customer care in all the packaging of the food products for past 10 years.
22. It was also mentioned that plaintiff was using the product sticker in name of Sawariya food products. Plaintiff also filed a complaint to FSSAI . Further, it was also mentioned that initially rent agreement for the factory premises i.e. C-5, Kaptan Singh Farm House, Sangam Vihar, New Delhi was in the name of plaintiff and after the dispute was orally and amicably settled between the parties, plaintiff had left the said premises and fresh agreement was executed between the defendant and owner of the rented premises. Since then, defendant is regularly paying rent to the owner/landlord of the property. It was mentioned that plaintiff was using the product sticker in the name of Sawaria Products and in the same sticker, plaintiff had mentioned that Deepak CS (Comm) No. 446/23 11/20 Foods was now OVENBELLY which sticker had also been displayed/printed on his email, website/Instagram ID/Facebook with specific mention that said products are manufactured by Sawariya Food and Deepak is Now OVENBELLY. Screenshot of the same was annexed alongwith the application. It was submitted that plaintiff had obtained ex-parte order by practicing fraud and deception and despite oral settlement between the parties whereby plaintiff had already started its business in the name of Sawariya Food Products at Faridabad, Haryana , yet he wanted to stop defendant from doing his business.
23. It was reiterated that plaintiff and defendant were real brothers who were doing the same business and plaintiff had also appeared with his counsel on 1.05.2023 before the court of Ld. SCJ/CCJ/ ARC (South) where the matter was withdrawn due to amicable settlement. It was also informed to court that plaintiff had falsely mentioned in para 20 of the plaint that he was never represented in the case CS/SCJ 328/23 and that he had not entered into any settlement.
24. Since plaintiff had claimed that proceedings in the court of Ld. SCJ were conducted without any notice to the plaintiff, plaintiff was put specific query in this respect and he conceded that he had appeared in CS/SCJ no. 328/23 on 01.05.2023 before the court of Ld. ACJ/CCJ/ARC (South). Plaintiff was examined under order 10 CPC. He admitted in the statement recorded under Order 10 CPC on oath that he had appeared in the said case alongwith his advocate on 01.05.2023 but did not appear in the said matter thereafter. He also admitted that the premises bearing no. C-5 (Basement, Ground Floor and First Floor) was taken on rent by defendant from the landlord Mr. Kuldeep Singh and that CS (Comm) No. 446/23 12/20 the rent of the premises was being paid by the defendant thereafter. He stated that lease deed of the suit premises was earlier in his name and he had paid rent of the said premises till April 2023.
25. Copies of the lease deeds have been placed by defendant on record and in view of the statements recorded under Order 10 CPC, judicial notice is taken of these lease deeds on record. Lease deed dated 04.07.2019 for basement, ground floor (6 Rooms) and first floor (6 Rooms) of property bearing no. C-5, Ch. Kaptan Singh Farm, Sangam Vihar, Holi Chowk, New Delhi
- 110062 is between Kuldeep Singh and Plaintiff herein which was though granted for period of 5 years commencing from 1.07.2019 to 31.05.2020, however it was noted that fresh deed will be executed and/or after the expiry of two years. The next lease deed for the same property is dated 09.07.2021 for basement, ground floor and first floor measuring 400 sq. yds between Kuldeep Singh and Plaintiff as proprietor of Deepak Food Products with mention that this lease was granted for limited period of 24 months i.e. w.e.f. July 2021 to 30.06.2023. Thereafter lease deed dated 15.05.2023 is between Kuldeep Singh and Defendant Deepak Sharma as Proprietor of Deepak Food Products (Lessee) for basement, ground floor (6 Rooms) and first floor (6 Rooms), commencing from 1.5.2023 to 31.03.2024.
26. Plaintiff had filed the instant suit on 28.07.2023 and has placed on record the lease deed dated 30.11.2021. Lease deed dated 30.11.2021 is between Kuldeep Singh and Plaintiff Sachin Sharma as proprietor of Deepak Food Products with respect to ground floor area 1755 sq feet and first floor 1600 sq. ft out of CS (Comm) No. 446/23 13/20 property bearing no. C-5, Ch. Kaptan Singh Farm, Sangam Vihar. In plaint, plaintiff had mentioned that defendant started its manufacturing unit/factory under the name and style as Deepak Food Products at C-5, Ch. Captan Singh Farm, Sangam Vihar Road, Delhi by producing and manufacturing the same product but misusing the trademark, FSSAI License of the plaintiff. Plaintiff did not disclose that from the the said property only, "Deepak Food Products" was operational, lease of which property was earlier in name of plaintiff and thereafter the same property had been re-let in favour of defendant. In statement recorded under Order 10 CPC, he mentioned that the said premises was taken on rent by defendant from the landlord and rent was also being paid by defendant from May 2023 onwards. The lease deed of the said premises, as stated by plaintiff, was earlier in his name and he had paid the rent of the said premises till April 2023. According to him, he shifted his house in April 2023 when defendant had threatened him and he filed a complaint at P.S. Neb Sarai P.S. Tigri. Yet, the same address of Delhi was filed by him in Memo of parties. Complaint made to police was withdrawn by plaintiff dated 01.05.2023. Said withdrawl statement was not filed by plaintiff on record but was filed by defendant in terms of which it was mentioned that he wanted to withdraw the complaint as he had compromised the matter with Deepak Sharma and requested not to take any legal step or any further action against him.
27. In statement of plaintiff recorded under Order 10 CPC, he also stated that 'M/s Sawariya Food Products' was registered in the name of his wife and had factory at Farbidabad, Haryana which firm was doing business in the similar products as that of CS (Comm) No. 446/23 14/20 the defendant. It was also stated by plaintiff in statement under Order 10 CPC that 'M/s Sawariya Food Products' was having its factory at Faridabad, Haryana and was doing business under the trademark Deepak Royal Bakery. The trademark Deepak Royal Bakery was not registered in his name by the trademark Registry, though he had applied for registration of the same.
28. Apparently plaintiff has made false submissions before the court and has not come to the court with clean hands. Plaintiff was not the registered owner of the trademark and is also not so till date. It was noted in order dated 07.08.2023 that the ex-parte stay was obtained by plaintiff by deception about his knowledge regarding case bearing no. CS/SCJ 328/2023 although he alongwith his counsel had appeared in the said case on 01.05.2023. As noted, plaintiff also did not mention about his current address of Faridabad, Haryana where he was residing on rent since April/May 2023. Even the factum of business of 'M/s Sawariya Food Products' in respect of the same/similar goods had not been mentioned by plaintiff in the plaint or at the time of obtaining the ex-parte ad interim order. Noting that plaintiff had knowingly made misleading/false statement in relation to the material particular of his knowledge about the case pending before Ld. CS/SCJ, interim injunction was vacated.
29. In the affidavit of evidence filed before the court, plaintiff stated that he is sole proprietor of M/s Deepak Food Products and relied upon MSME Certificate Mark PW1/2. Mark PW1/2 is Udyam Registration Certificate issued in name of 'Deepak Food Products' with mention of date of incorporation/registration of enterprises as 20.07.2015. However, there is no mention that 'Deepak Food Products' is owned by plaintiff or even that CS (Comm) No. 446/23 15/20 plaintiff is the sole proprietor of 'Deepak Food Products'. Documents pertaining to sanction of credit facility in name of 'Deepak Food Products' does not benefit case of the plaintiff in absence of any substantiating document on record to reflect that plaintiff is the sole proprietor of 'Deepak Food Products'.
30. Mark PW1/6 is FSSAI License issued on 18.01.2023 whereas in terms of own admission of plaintiff he had shifted from the said address in April-May 2023. Similar is for GST Certificate. Statement of defendant was also recorded under Order 10 CPC wherein he had undertaken not to use plaintiff's FSSAI License as well as plaintiff's GST number. Defendant had stated that he had separate FSSAI License number in his own name as well as GST number in name of his firm M/s Deepak Food Products.
31. Mark PW1/14 is spot memo prepared, consequent to the complaint made by plaintiff to the department of Food Safety vide mark PW1/13. In Mark PW1/13 placed on record by the plaintiff himself, it was mentioned that the plaintiff was the owner of Food License Number 10020011008199 and was manufacturer of Bakery Products with the brand Deepak Royal Bakery. Following complaint was made :
" I, Sachin Sharma proprietor of M/s Deepak Food Products having its registered office cum factory at 178/3, G.F. , Sangam Vihar, New Delhi- 110062, is the owner of Food License Number 10020011008199 valid from 27.10.2020 to 26.10.2025 and manufacturer of bakery products with the brand Deepak Royal Bakery.
I want to inform you that somebody named Deepak Sharma is manufacturing same type of products as me with the same name i.e. Deepak Royal Bakery by using my Food License Number 10020011008199 and selling in the local markets. His GST number is 07CDNPS4824EIZA w.e.f. 25.05.2023 (screenshot of which enclosed herewith).
The factory address on which the same manufacturing is located as follows:
Basement, Ground and First Floor, C-5, CH. Kaptan Singh Farm, Sangam Vihar Road, Holi Chowk, New Delhi - 110080.CS (Comm) No. 446/23 16/20
I am hereby requesting you kindly take immediate action as I am not related to him from any type. As all the products are for daily eating use, if any person will get harm by using the product of another manufacturer, I will not be responsible for that.
I have already informed to the Central Licensing Authority, Ghaziabad. I am hereby also enclosing a copy of the sales invoice as he sends to his supplier on which all details are mentioned".
32. Mark PW1/14 is Spot Memo, prepared by the department consequent to the complaint made by plaintiff wherein it was noted that during the investigation of the premises, it was found that unit was having a state license (13323002000446) with the name " Deepak Food Products". The State License as being used by the said premises was found to be not belonging to plaintiff. As the FBO was not having a valid state or central license for manufacturing food, hence FBO representative was directed not to manufacture food until the valid FSSAI License was issued. In addition to that, FBO was directed not to use the License no. 10020011008199 which was issued to M/s Deepak Food Products at the same address at Sangam Vihar and to mention their own valid FSSAI License Number and address of the premises. Surprisingly plaintiff did not inform to the authority concerned that Deepak Sharma was his brother and not 'somebody' named Deepak Sharma as mentioned in the complaint. Plaintiff rather requested for immediate action stating that "I am hereby requesting you kindly take immediate action as I am not related to him from any type".
33. It is apparent on record that the parties had family/joint business in the name of 'M/s Deepak Food Products'. Once plaintiff as claimed by him diverted his line of business and commenced his own business, there was no reason or occasion for him to adopt the trademark as 'Deepak Royal Bakery' or to use the same name and style of M/s Deepak Food Products which CS (Comm) No. 446/23 17/20 was the name of his elder brother and both the parties were apparently not on good terms. Plaintiff's shifting to Faridabad, opening another firm M/s Sawaria Food Products which is doing business of the similar products and non mention with regard to appearance in the other matter which was pending before Ld. Senior Civil Judge, points out towards the own misconduct of the plaintiff . Though the written statement filed by defendant was not considered on record. Nevertheless it emerged on record that plaintiff had left the rented premises where the factory was located as well as started and is operating his own business in name of Sawaria Food Products. Judicial notice is also taken of the screenshots of advertisements annexed as Annexure-O with regard to change of name of business of plaintiff as OVENBELLY wherein it was mentioned that the " OLD (DEEPAK) & NEW (OVENBELLY)"and INTRODUCING OVENBELLY formally known as " DEEPAK FOOD PRODUCTS". Plaintiff also placed on record the invoices issued by defendant in name of 'Deepak Food Products', however did not place on record invoices issued by the plaintiff either in name of 'Deepak Food Products' or 'Deepak Royal Bakery'. Plaintiff has claimed that he had been using the trademark Deepak Food Products since year 2020 as mentioned in plaint, whereas in the application for trademark filed by plaintiff himself on record, as on 17.04.2021, the trademark was 'Proposed to be used' which is contrary to the averment of plaintiff that he has been using the trademark since 2020.
34. As turns out, it is plaintiff who is guilty of suppressing the material facts from the court who has not come to the court with clean hands and rather it is the plaintiff who seems to have CS (Comm) No. 446/23 18/20 misused the process of law by making false averments before the court. It is incumbent upon a plaintiff to approach the Court with 'clean hands', a principle that mandates the full disclosure of all relevant and material facts. This disclosure is not limited to facts that bolster a party's case but extends to all information that could potentially aid in a comprehensive and fair adjudication of the dispute. The duty of disclosure encompasses not only the submission of all documents pertinent to the current litigation but also an obligation to inform the Court of any previous litigations between the parties, any previous litigations concerning the suit patent, along with their respective outcomes. Such transparency is indispensable for ensuring that the Court has a complete and unobscured view of the relevant factual landscape, which is crucial for the fair dispensation of justice. (CS(COMM) 884/2023, I.As. 25074/2023, 25075/2023, 25076/2023& 25077/2023, titled as FREEBIT AS vs. EXOTIC MILE PRIVATE LIMITED).
35. As was observed in Kishore Samrite vs. State of U.P. and Ors., MANU/SC/0892/2012:
" (i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings.
Materialism,opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
CS (Comm) No. 446/23 19/20(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final".
36. Defendant nevertheless vide his statement dated 07.08.2023 had undertaken not to use plaintiff's FSSAI License bearing no. 10020011008199 as well as the plaintiff's GST Number 07DZUPS6099M1ZX. He also stated about having separate FSSAI License number in his own name and separate GST number in name of M/s Deepak Food Products.
Consequent to the statement of the defendant, he was directed to remain bound by statement regarding not using the plaintiff's FSSAI License or GST number. Defendant shall remain bound by his statement and is restrained from using the FSSAI License or GST number of the plaintiff. With regard to all other claims, suit filed by plaintiff, in view of the discussion made herein above, stands dismissed, with no order as to cost.
37. Decree sheet be prepared accordingly. After completion of formalities, files be consigned to record room.
Announced in the Open Court on 02.09.2024 (SAVITA RAO) District Judge (Commercial)-01 South District: Saket:New Delhi CS (Comm) No. 446/23 20/20