Bombay High Court
Bharat Infracement Limited And 6 Ors vs Ultratech Cement Limited And 3 Ors on 19 October, 2022
Bench: G.S.Patel, Gauri Godse
Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors
904-comapl-33272-2022-with-ial-33275-2022.doc
Digitally signed by IRESH
IRESH SIDDHARAM SIDDHARAM MASHAL
MASHAL Date: 2022.10.21 12:19:39
+0530
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL APPELLATE DIVISION
COMMERCIAL APPEAL (L) NO. 33272 OF 2022
IN
INTERIM APPLICATION NO. 1311 OF 2022
IN
NOTICE OF MOTION NO. 2472 OF 2019
IN
COMMERCIAL IP SUIT NO. 1271 OF 2019
WITH
INTERIM APPLICATION (L) NO. 33275 OF 2022
IN
COMMERCIAL APPEAL (L) NO. 33272 OF 2022
Bharat Infracement Ltd & Ors ...Appellants
~ versus ~
Ultratech Cement Ltd & Ors ...Respondents
Mr Anil Anturkar, Senior Advocate, with AM Saraogi, Sushil
Upadhyay, i/b AM Saraogi for the Appellants.
Mr Amit Jamsandekar, with Alka Parelkar, i/b VA Associates for
the Respondents.
Mr SK Dhekale, Court Receiver, present.
Page 1 of 19
19th October 2022
Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors
904-comapl-33272-2022-with-ial-33275-2022.doc
CORAM: G.S.Patel &
Gauri Godse, JJ.
DATED: 19th October 2022 PC:-
1. The Appeal is directed against an order of 14th October 2022. A copy of that order is at from pages 22 to 28 of the paperbook. That order was clearly an ad-interim order since the application itself is listed for further consideration on 24th November 2022. The learned single Judge, Manish Pitale J, made that ad-interim order under Order 39 Rule 2-A of the Civil Procedure Code, 1908 ("CPC"), on an interim application filed by the Original Plaintiff ("Ultratech").
2. The Suit is a Commercial Intellectual Property action in trade mark infringement and passing off. It has a long history going back several years to 2019. We begin with Pitale J's order. He noted that there was an immediately previous order of RI Chagla J on 28th April 2022, granting Ultratech ad-interim reliefs. By the time the application came before Pitale J, there was a rejoinder and a sur- rejoinder. The learned Single Judge was shown previous orders, to which we will presently turn. It was pointed out that there were ad- interim orders without notice, including an order appointing a Court Receiver. Orders of injunction had also been issued. Despite this, the 1st Defendant ("Bharat Infracement") and the other Defendants continued to infringe Ultratech's registered trade mark. This was despite the Defendants' undertaking to the court and making a solemn statement to the court that they had ceased to use Ultratech's registered marks. This statement was reiterated before Page 2 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc Pitale J. It was contended that Ultratech had moved the court on a mere apprehension and without material to support its submissions. The learned Single Judge then examined the previous order of 28th April 2022 by RI Chagla J. Being dissatisfied with the Defendants' conduct, the earlier bench had asked the individual Defendants to remain present. Pitale J found in paragraph 9 on the material that was before him that the Defendants had indeed continued to sell cement in bags carrying or imprinted with identical or deceptively similar to those of Ultratech despite the injunction. He found that this was in direct violation of the order of 28th April 2022 and earlier orders. Even before Pitale J the only statement made on behalf of the Defendants was simply that they had stopped using Ultratech's registered trade marks. Bharat Infracement and others had also failed to file an Affidavit of Disclosure of the movable and immovable properties of Bharat Infracement and the 2nd Defendant.
3. In paragraph 11 of the impugned order, the learned Single Judge found that the statements made on behalf of the Defendants were not sincere. There was a failure to abide by the directions given in the order of 28th April 2022. The Affidavit of Disclosure had not been filed. Thus, the learned Single Judge took the prima facie view that an appropriate order could be made under Order 39 Rule 2-A of the CPC including an order to attach the movable and immovable properties of the Defendants. The plaintiffs had provided details of the Defendants' manufacturing units in Uttar Pradesh. The learned Single Judge granted ad-interim reliefs in terms of prayer clause (g) which is which is set out in paragraph 14 of the impugned order at page 27 and which we once again reproduce below:
Page 3 of 1919th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc "(g) That pending final hearing and disposal of the Suit, the Court Receiver, High Court, Bombay be appointed the Receiver of (i) all the properties, assets, movable or immovable including the factories/plants/units etc. located at the Respondent's address mentioned in the cause title and Kanti Mandir Chauraha, Reewa Road, Kanti Gauhaniya, Prayagraj, Uttar Pradesh 212017 and Jasra Market, near State Bank of India, Jasra Prayagraj Uttar Pradesh 212017 alongwith the machineries etc. with further directions to attach and seal the same. (ii) all the products/gunny bags/cement bags/packaging/labels/wrappers and/or any other material sold under the marks, being Exhibit H to H2 of the Plaint or any mark identical or confusingly similar thereto or in combination with any other word or device and/or other deceptively similar words written in a stylized manner or in any manner which is identical with and/or any other deceptively similar marks to the Applicants' "UltraTech/ULTRA and BIRLA" trade marks with all powers under Order XL Rule 1 of the Civil Procedure Code, 1908 with powers to take physical possession thereof from the Respondents herein, Directors, distributors, servants, agents etc. or/any person claiming through or under them and wherever situated, with adequate police protection."
4. Then the learned Single Judge directed the Court Receiver, previously appointed, to take appropriate action to attach the plant and machinery of the Defendants. All offending material was to be seized and the Court Receiver was entitled to take the assistance of police authorities. A report was called for from the Court Receiver to be placed before the court on 22nd November 2022. The Page 4 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc Defendants were directed to file their Affidavit of Disclosure on or before that date and the matter was scheduled for 24th November 2022. Finally, the last direction was to require the personal presence in court of Defendant nos. 3, 4, 6, 7 and 9.
5. There are two distinct aspects to the matter. The first is that this is an ad-interim order. As a general -- but not inflexible -- rule, we do not interfere with ad-interim orders unless it is shown to us that the order in question was arbitrary, perverse, capricious, contrary to law or so thoroughly unreasonable that it could not possibly have been made. In doing so, we adhere firmly to the long standing principle settled 32 years ago in Wander Ltd & Anr v Antox India Pvt Ltd1 and all the cases that have followed and reaffirmed that principle including as recently as 2022.2
6. Mr Anturkar's first submission is that an ad-interim order cannot be made under Order 39 Rule 2-A. According to him only a final order can be made on such an application. There is nothing in Order 39 Rule 2-A which supports such an interpretation. Order 39 Rule 2-A reads thus:
1 1990 (Supp) SCC 727.
2 In past orders, we have also referenced Mohd Mehtab Khan v Khushnuma Ibrahim Khan, (2013) 9 SCC 221; Monsanto Technology LLC v Nuziveedu Seeds Ltd, (2019) 3 SCC 381; and Shyam Sel & Power Ltd & Anr v Shyam Steel Industries Ltd, 2022 SCC OnLine SC 313. We applied the principle inter alia in World Crest Advisors LLP v Catalyst Trusteeship Ltd & Ors, 2022 SCC OnLine Bom 1409; Pradip R Kamdar & Anr v Rajiv Sanghvi & Ors, 2022 SCC OnLine Bom 3147; Dipesh Mehta & Ors v Gerard Shirley & Ors, 2022 SCC OnLine Bom 3453; and most recently in our order dated 13th October 2022 in Future Corporate Resources Pvt Ltd v Edelweiss Special Opportunities Fund & Anr, Commercial Appeal (L) No 31212 of 2022.Page 5 of 19
19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc "2-A. Consequence of disobedience or breach of injunction.--
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or beach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
7. Rule 2-A finds place in Order 39 which deals with temporary injunctions and interlocutory orders. Nothing in Order 39 prevents the making of an ad-interim order.
8. Notably the application by Ultratech is not only under Order 39 Rule 2-A. It is also under Order 39 Rule 11, introduced by a Bombay High Court amendment. Order 39 Rule 11 reads thus:
"11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court. -- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing Page 6 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the Defendant or the opponent.
(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court:
Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed."
9. In addition, as Mr Jamsandekar points out, remedies are available to a plaintiff in a trade mark action under Section 135 of the Trade Marks Act, 1999. This includes temporary injunctions and that necessarily implies ad-interim injunctions as well. Section 135 reads thus:
"135. Relief in suits for infringement or for passing off.
--
(1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and Page 7 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc marks for destruction or erasure.
(2) The order of injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:--
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence which are related to the subject- matter of the suit;
(c) restraining the Defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
(3) Notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case
--
(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or
(b) where in a suit for infringement the Defendant satisfies the court--
(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user being by way of permitted use; and
(ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the Page 8 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc trade mark in relation to goods or services in respect of which it was registered; or
(c) where in a suit for passing off, the Defendant satisfies the court--
(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and
(ii) that when he became aware of the existence and nature of the plaintiff's trade mark he forthwith ceased to use the trade mark complained of."
10. The next submission by Mr Anturkar is that the learned Single Judge was "impressed" by a private investigation report tendered on behalf of Ultratech or relied on by the plaintiff. This is a complete misreading of the order. In paragraph 4, Pitale J only noted submission made by the plaintiff. No part of the order returns a finding on any part or any portion of the so called private investigation report. That report received attention in a previous order, as we shall presently see; and the Appellants have never assailed that previous order.
11. What is not in doubt is that there is continued, and we are certain, deliberate non-compliance with Chagla J's previous order of 28th April 2022 for disclosure. Mr Anturkar submits that his clients are prepared to make that disclosure now. We fail to understand what this is supposed to mean. Once there was an order of a court, it had to be complied with. The Defendants are doing neither us nor anyone else a favour by complying with orders of this court. They have no choice in the matter.
Page 9 of 1919th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc
12. Mr Anturkar then submits that Order 39 Rule 2-A cannot be used to enforce an order of disclosure of assets but only when a case is made out for breach of an injunction. But that is precisely what Pitale J found inter alia from a Court Receiver's report which showed that despite an earlier injunction, the Defendants had continued to use the mark.
13. The Appeal paper-book before us itself shows the persistent disobedience by these Defendants of not one but at least three orders of this court. The Suit was filed in 2019 as Commercial IP Suit (L) No. 919 of 2019. It is now numbered as Commercial IP Suit No. 1271 of 2019. The very first application made was for ad-interim relief without notice before Colabawalla J on 13th September 2019. After a reasonable examination of the facts, Colabawalla J made an ad-interim order in terms of prayer clauses (a) and (b) of a Notice of Motion listed before him. The first order was a temporary injunction from using the offending marks in relation to cement or other goods for which Ultratech had registered trade marks. Specifically, the Defendants could not use the marks "Ultratech", "Ultra", "Birla" or any combination of these marks. Colabawalla J also appointed a Court Receiver.
14. The Defendants did not challenge that order.
15. The same Motion with a Clause 14 Letters Patent Petition then came up before Gupte J on 27th November 2019. The Plaintiffs tendered a compilation of documents. Gupte J noted the ad-interim order by Colabawalla J of 13th September 2019. Ultratech Page 10 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc complained that the Defendants were dealing with counterfeit goods using a deceptively similar mark. In paragraph 2, (page 111 of the Appeal paper book) Gupte J noted that the Defendants appeared on 19th November 2019 and undertook to file a Vakalatnama and a Reply to the Motion. Yet none appeared that day, 27th November 2019, before Gupte J. There was no Affidavit in Reply. Contrary to the assurance given to the court there was not even a vakalatnama. Gupte J granted leave under Clause 14 and then granted an ad- interim order also in terms of prayer clauses (a) and (b), that is to say, an injunction on the cause of action in passing off as well. Prayer clause (c), which was for the Receiver, had already worked itself out.
16. Mr Jamsandekar points out that despite even this second order the Defendant continued to use the offending/infringing marks. There is material, he says, that in another suit filed in the Calcutta High Court by another registered proprietor, the Defendants filed an Affidavit in Reply and (apparently also filed accounts) indicating that they were not using that proprietor's or plaintiff's mark but were only using the 'Ultra' series of marks. Even if we do not take this into account, what is undoubtedly of significance, is that even against Gupte J's order there was neither an appeal nor an attempt to have it recalled or modified at any time.
17. The Plaintiff's application came up before Chagla J on 28th April 2022. By now, the Defendants were represented. The arguments evidently took some time. Chagla J had before him the Interim Application under Order 39 Rule 2A for breach of Colabawalla J's 13th September 2019 order. He noted Gupte J's subsequent order and then in paragraph 4, Chagla J noted that when Page 11 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc the Court Receiver visited the premises of the 1st and 2nd Defendants, he found 26,100 empty bags and 50 filled bags bearing the impugned marks. The Court Receiver's inventory also showed 3400 empty bags with the impugned marks. In paragraph 6, Chagla J noted Ultratech's submission that the Defendants were now using other marks also deceptively similar to the Plaintiffs' registered trade marks. It is here in paragraph 6, that is to say on 28th April 2022 that there is a reference to a private investigation report of 22nd March 2022. This report showed that Ultratech had come upon a huge quantity of cement bags with the mark 'UltraGold' loaded in a truck. The investigators were told that daily ten such trucks were dispatched by the 1st Defendant. There were further cement bags with the names 'BICL Birla Champion', 'BICL Ultra Solid' and 'BICL Ultra Shakti'. Photographs were annexed to the Interim Application and the court was itself shown these bags.
18. We note this because Mr Anturkar's submission appears to be that this investigation report was noticed for the first time in Mr Pitale J's order of 14th October 2022 and that the Defendants were caught unaware by that reference. This is demonstrably incorrect from the record itself. More importantly, for our purposes today, the Defendants have already filed a written statement in the suit. In that they have averred that they have stopped using the impugned marks after the ad-interim orders. All the evidence points to the contrary. Hence Mr Jamsandekar's application is also framed under Order 39 Rule 11 for having the written statement struck off.
19. It is at this point before Chagla J that Mr Jamsandekar pointed out the proceedings in the Calcutta High Court and what Page 12 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc the Defendants had claimed in that proceeding -- viz., that the Defendants had told that Court they were not using the marks of the plaintiff in that proceeding but were using the Ultra/Ultratech series of (injuncted) marks.
20. Chagla J noted in paragraph 11 that he was satisfied -- and this is after hearing the Defendants -- that there was a strong prima facie case in favour of Ultratech. He noted that there were no equities in favour of the Defendants. He found that the balance of convenience was with the plaintiffs and against the Defendants and therefore made yet another ad-interim order, this time on the Order 39 Rule 2-A/Rule 11 interim application in terms of prayer clause
(c), (e) and (f ) which are set out in that order in paragraph 11. We reproduce those prayers from page 62 of the Appeal paper book.
"(c) That pending final hearing and disposal of the Suit, that the Respondents be ordered and directed to disclose on oath all properties, movable and immovable including the bank accounts in their own name, or their directors, partners, nominees, agents or any person or entity controlled by them and/or claiming through or under them;
(e ) That pending the hearing and final disposal of the Suit, the Respondents themselves and its directors, partners, be restrained by a temporary Order and injunction of this Hon'ble Court from, directly or indirectly and in any manner, dealing with their movable and immovable properties, disposing off, creating third party rights, parting with possession of the same and withdrawing any monies from their bank accounts etc.;
(f ) That pending the hearing and final disposal of the Suit, the Respondents themselves and its directors, partners be directed to render on oath a full and complete account of Page 13 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc profits earned out of wilful default and breach of the Orders dated 13th September, 2019 and 27th November, 2019; by carrying on business activities, directly or indirectly, and/or by Respondents including but not limited to;
i. Sale and purchase of the product under the impugned marks.
ii. The details of the orders procured (completed and pending) by it/them for the said product under the impugned marks.
iii. To render true and faithful accounts of all the profits and made sale of the product under the impugned marks and obtaining order thereof;"
21. Then in paragraph 12, Chagla J directed that an affidavit of disclosure be filed by the Defendants providing the disclosures as sought in prayer clause (c) and (f ). This was to be done in two weeks.
22. There was no affidavit of disclosure. Pitale J found that the infringement also continued. Other than making a statement that the Defendants had stopped using the mark, there was nothing before Pitale J to show that the Defendants had stopped using the mark. Even before Chagla J, the same statement was made that the Defendants had stopped using the mark. The weight of the material is against the Defendants.
23. Just as with the orders of Colabawalla and Gupte J, no appeal ever filed by the Defendant against Chagla J's order.Page 14 of 19
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24. We have far too many cases of this kind where parties against whom orders are passed believe, and their tribe is increasing, that they need not comply with orders of this court. They seem to regard our orders as mere suggestions. They seem to believe that they have the option of complying or not complying with orders of the court. We propose to disabuse these parties, starting with these Defendants, of these entirely wrong-headed notion. For, in our considered view the real victim of the Defendants' conduct is not Ultratech but is this Court. Such actions undermine the authority of this court, brutalize the sanctity of its orders and strike at the roots of the rule of law itself. We will not tolerate this and the sooner these parties realize this the better.
25. There is not a shred of merit in this Appeal. If anything, it is a gross abuse of the process of this Court, and we intend to treat it as such.
26. The Appeal is dismissed.
27. However, and this is another lesson Defendants will learn, the dismissal will now be accompanied by an order of costs. In making this order, we have regard to Section 35 of the CPC as amended by the Commercial Courts Act. In its entirety Section 35 reads thus.
"35. Costs.--
(1) In relation to any commercial dispute, the Court, notwithstanding anything contained in any other law for the time being in force or Rule, has the discretion to determine:
(a) whether costs are payable by one party to another;Page 15 of 19
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(b) the quantum of those costs; and
(c) when they are to be paid.
Explanation.--For the purpose of clause (a), the expression "costs" shall mean reasonable costs relating to
--
(i) the fees and expenses of the witnesses
incurred;
(ii) legal fees and expenses incurred;
(iii) any other expenses incurred in connection
with the proceedings.
(2) If the Court decides to make an order for payment of costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party:
Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing.
Illustration The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court holds that the Plaintiff is entitled to the money decree. However, it returns a finding that the claim for damages is frivolous and vexatious.
In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the successful party, for having raised frivolous claims for damages. (3) In making an order for the payment of costs, the Court shall have regard to the following circumstances, including--
(a) the conduct of the parties;
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(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;
(c) whether the party had made a frivolous counterclaim leading to delay in the disposal of the case;
(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the other party; and
(e) whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the time of the Court.
(4) The orders which the Court may make under this provision include an order that a party must pay--
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's
costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the
proceedings;
(f ) costs relating to a distinct part of the
proceedings; and
(g) interest on costs from or until a certain
date.
(Emphasis added)
28. This makes it clear that in a commercial matter the rule is that the losing party must pay costs and that costs must be awarded. The intention of the legislature is to eliminate frivolous appeals. This is Page 17 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc undoubtedly one of the most frivolous appeals we have seen in a long time. Substituted Section 35 also provides guidelines. The Section itself contemplates costs being imposed on account of a conduct of the parties. Where a party has made a frivolous claim and instituted a vexatious proceeding wasting the time of the court, an order of costs will follow. The mandate is clear because if costs are not to be awarded in a commercial matter against the losing party, reasons are required to be given by the court. We can find no reason to justify not awarding costs against these Defendants/Appellants. The question then arises what should be the measure of these costs. We are not here dealing with some transient personal or individual rights. These are commercial matters. Commercial intellectual property carries a high value. The goods under the impugned infringing marks have, Mr Jamsandekar says, undoubtedly a value that runs into crores. Whether he can show this or not is perhaps a matter for another day but what he can undoubtedly establish and which none can deny is the statement in the plaint of the Plaintiff's own turnover under its Ultratech mark.
That, from any perspective, is the loss sought to be avoided or at least part of the loss sought to be avoided. This will give us some measure of what it is that the Defendants are attempting when they continued to defy orders of this court. There is in this context a legendary phrase from intellectual property law. It comes from an English judgment, and it tells us that the courts should not be so astute as to say that a defendant is not doing that which he is evidently straining every nerve to do. 3 That was in the context of action in passing off. It applies equally in the facts of this case.
3 Slazenger & Sons v Feltham & Co, (2) RPC 1889 6 531 Page 18 of 19 19th October 2022 Bharat Infraccement Ltd & Ors v Ultratech Cement Ltd & Ors 904-comapl-33272-2022-with-ial-33275-2022.doc
29. Mr Jamsandekar has other submissions to make including allegations by Ultratech of its representatives or court representatives being threatened by the Defendants. We ignore those for the moment.
30. Having regard to these circumstances, while we dismiss this appeal, we do so with an order of costs jointly and severally against the Appellants payable to the Plaintiffs in the amount of Rs. 5 Lakhs. The amount is to be paid within two weeks from today. If it is not paid within that time, the order of costs will be executable as a decree and will then carry interest at the rate of 6% per annum.
31. In view of dismissal of Appeal, Interim Application stands disposed of.
(Gauri Godse, J) (G. S. Patel, J)
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