Delhi High Court - Orders
Skywood Interior Solutions vs Union Of India & Anr on 11 March, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~20 & 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.O. (COMM.IPD-TM) 163/2023 & I.A. 10991/2023, I.A.
10992/2023
SKYWOOD INTERIOR SOLUTIONS ..... Petitioner
Through: Mr. Harish Kumar, Ms. Meenakshi,
Mr. Mukund Yadav, Mr. Shivam
Kumar, Mr. Anil Sharma and Mr. T.
Khan, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Mr. Srish Kumar Mishra,
Mr. Alexander Mathai Paikaday, Mr.
Lakshay Gunawat and Mr. Krishnan
V., Advocates for R-1.
Mr. Peeyoosh Kalra, Mr. Vishal Patel,
Mr. Kunal Khanna and Mr. Ashutosh
Shukla, Advocates for R-2.
+ C.O. (COMM.IPD-TM) 164/2023
SKYWOOD INTERIOR SOLUTIONS ..... Petitioner
Through: Mr. Harish Kumar, Ms. Meenakshi,
Mr. Mukund Yadav, Mr. Shivam
Kumar, Mr. Anil Sharma and Mr. T.
Khan, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Mr. Srish Kumar Mishra,
Mr. Alexander Mathai Paikaday, Mr.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 12/03/2024 at 00:32:54
Lakshay Gunawat and Mr. Krishnan
V., Advocates for R-1.
Mr. Peeyoosh Kalra, Mr. Vishal Patel,
Mr. Kunal Khanna and Mr. Ashutosh
Shukla, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 11.03.2024
1. At the outset, Mr. Peeyoosh Kalra, counsel for Respondent No. 2, raises an objection regarding maintainability of the present petitions. He refers to order dated 1st June, 2023, which records the basis of his objection to the following effect:
"1. At the outset, Mr. Junaid Alam, counsel for Respondent No. 2, raises an objection regarding maintainability of the present petitions. He states that Respondent No. 2 has filed a suit before the Rohini District Court [being CS (COMM) 173/2022] against the Petitioner in relation to the impugned trademarks. He states that in the said suit, no leave of the Court has been obtained under Section 124 of the Trade Marks Act, 1999, which renders the instant petitions not maintainable."
2. Prior to expressing any opinion on the issue, the Court finds it necessary to note an intervening fact. During the pendency of the present proceedings, the plaint in the aforenoted suit filed by Respondent No. 2 has been returned under Order VII Rule 10 of the Code of Civil Procedure, 1908 ['CPC'] with a direction that the same be filed before the court of appropriate jurisdiction in Ghaziabad. In view of the above, Mr. Harish Kumar, counsel for Petitioner, urges that in absence of any suit proceedings, the rigour of Section 124 of the Act is not attracted.
3. On the other hand, Mr. Kalra contends that the aforenoted development is inconsequential as the issue to be decided by this Court only This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/03/2024 at 00:32:54 pertains to the maintainability of the present petitions as on the date when they were filed. Nonetheless, Mr. Kalra states that they have assailed the order of return of plaint, and that the Division Bench has issued notice in the said appeal through order dated 3rd November, 2023 in FAO (COMM) 227/2023. Thus, Mr. Kalra argues that since the appeal is a continuation of the suit proceedings, return of the plaint would have no legal effect on the maintainability of the present proceedings. Moreover, he emphasises that a decision under Order VII Rule 10 of CPC is not an adjudication on the merits of the case and a direction for return of plaint does not amount to dismissal of a suit. Therefore, it cannot be contended that the suit proceedings have culminated for Petitioner to be granted any exemption from compliance with the mandate of Section 124 of the Act. In this regard, he relies on the judgment in Bhandari Engineers & Builders Pvt. Ltd. v. Vijaya Bank & Ors.1 Accordingly, Mr. Kalra reiterates their objection and submits that in the absence of any leave granted by the suit Court, the present petitions are not maintainable.
4. Having considered the above, the Court is of the opinion that accepting Mr. Kalra's contentions and rejecting the instant rectification petitions will have no legal effect other than delaying the present proceedings. Petitioner is an "aggrieved person" in terms of Section 57 of the Act, as is evident from the fact that there is lis between the parties. Therefore, notwithstanding dismissal of the instant petitions solely on the technical objection as to their maintainability at the time of filing, Petitioner would still be entitled to seek cancellation/ rectification of the impugned mark and would only be constrained to file fresh petitions to that effect.
1(2010) 168 DLT 47 (DB) This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/03/2024 at 00:32:54 Accordingly, the Court does not find any reason to indefinitely postpone the present rectification proceedings merely on account of the pendency of appeal proceedings and continuation of suit proceedings before an alternate Court.
5. In view of the above, the contention urged by Mr. Kalra is rejected and the proceedings are fixed for hearing on 24th July, 2024.
SANJEEV NARULA, J MARCH 11, 2024 d.negi This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/03/2024 at 00:32:54