Delhi District Court
9 vs Satya Infra & Estates Pvt Ltd on 1 December, 2021
1
IN THE COURT OF MS NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-003218-2020.
CS (COMM) No. 380 of 2020.
M/s Dev Pharmacy Pvt Ltd v. Double 33 (You tube channel owner) and
another.
01.12.2021
Appearances : Mr.Anil Kumar Sahu, Ms. Shinkal Garg and Mr. Ayush Dixit,
counsel for the plaintiff.
Defendant numbers 1 and 2 i.e. Google LLC and You Tube LLC
have already been dropped from the array of defendants vide
order dated 05.09.2020.
Defendant numbers 1 and 2 i.e. Double 33 (You tube channel
owner) and Free Medicine Tips (You tube channel owner) (as per
the amended memo of parties) have already been proceeded ex
parte vide order dated 06.02.2021.
ORDER
1. Vide this order, the application under order VIII rule 10 of the Civil Procedure Code (hereinafter referred to as the CPC) read with Section 151 CPC filed on behalf of M/s Dev Pharmacy Pvt. Ltd. against Double 33 (You tube channel owner) and Free Medicine Tips (You tube channel owner) i.e. defendants no.1 and 2 respectively(as per the amended memo of parties) for disposal of the case in terms of prayer clause 33 (a) to (c) of CS (Comm) no. 380 of 2020.
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2the plaint is being allowed.
2. The plaintiff had filed the suit under the Commercial Courts Act, 2015, (hereinafter referred to as the CC Act) and under sections sections 134 and 135 of the Trade Marks Act, 1999 (hereinafter referred to as the TM Act) and section 55 of the Copy Rights Act (hereinafter referred to as the CR Act) against defendant number 1 (Google LLC), defendant number 2 (You Tube LLC) and defendant number 3 (Mr.Ashok Kumar-John Doe) for permanent injunction restraining infringement; passing off; delivery up; damages, rendition of accounts, etc. along with an application under order XXXIX rules 1 and 2 read with section 151 of the CPC and an application under section 151of the CPC.
3. Vide order dated 17.07.2020, the ex-parte injunction was granted in favour of the plaintiff 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 defendants.
4. On 11.08.2020, the counsel for defendant number 1 (Google LLC) and defendant number 2 (You Tube LLC) had appeared. She had filed an application under order I rule 10 of the CPC seeking deletion along with affidavit, application under section 151 CPC for exemption from filing notarized supporting affidavit, application under order VII rules 10 and 11 of the CPC for return/rejection of the plaint and application under order XXXIX rule 4 read with section 151 of the CPC for seeking vacation of the order dated 17.07.2020 along with annexures. She had sought time to file the written statement and also to furnish the particulars/subscriber details of the defendant number 3 who was John Doe and his particulars CS (Comm) no. 380 of 2020.
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3were not known to the plaintiff.
5. On 27.08.2020, the counsel for defendant number 1 (Google LLC) and defendant number 2 (You Tube LLC) had submitted that the basic subscriber details of defendant number 3 had been furnished by them on the e mail id of the Judicial Assistant/ Reader of the Court. The counsel for the plaintiff has filed replies to the applications of the defendant number 1 (Google LLC) and defendant number 2 (You Tube LLC) under order I rule 10 of the CPC, application under order VII rules 10 and 11 CPC and application under order XXXIX rule 4 read with section 151 CPC.
6. As per law and in compliance of the judgment reported as CS Comm No. 322/2020 Dharampal Satyapal Sons Pvt. Ltd. v. Youtube LLC & ors. passed by hon'ble High Court of Delhi on 14.08.2020, vide order dated 05.09.2020, the names of the defendant number 1 (Google LLC) and defendant number 2 (You Tube LLC) had been deleted from the array of the parties as they had furnished the basic subscriber details of defendant number 3 (John Doe) to the plaintiff.
7. On 03.11.2020, after dropping of the names of the Google LLC and You Tube LLC i.e. defendants numbers 1 and 2 from the array of the defendants, amended memo of parties dated 29.09.2020 was filed wherein Double 33 (You tube channel owner) and Free Medicine Tips (You tube channel owner) were made as defendants numbers 1 and 2 (since initial defendant number 3 Ashok Kumar was John Doe) and they were ordered to be served.
8. On 16.12.2020, none had appeared on behalf of defendant number 1 (as CS (Comm) no. 380 of 2020.
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4per amended memo of parties dated 29.09.2020) i.e. Double 33 (You tube channel owner), who was served through whatsapp on 04.12.2020. None had appeared on behalf of defendant number 2 i.e. Free Medicine Tips (You tube channel owner), who was served through e-mail on 05.12.2020. Counsel for the plaintiff had submitted that he has already filed the affidavit regarding the correctness of the particulars of the defendants in compliance to the Delhi Courts service of process by courier, fax and electronic mail service (Civil Proceedings) Rules, 2010.
9. On 06.02.2021, defendant number 1 i.e. Double 33 (You tube channel owner) (as per amended memo of parties), who was served through whatsapp on 03.12.2020 and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties), who was served through e-mail on 05.12.2020, were proceeded ex parte and the matter was listed for ex parte evidence.
10. On 25.03.2021, the counsel for the plaintiff has filed an application under order VIII Rule X of the CPC read with Section 151 of the CPC.
11. 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.
12. This Court is conscious of the recent judgments of the hon'ble Supreme Court of India and the hon'ble High Court of Delhi as well as the earlier precedents which are as follows :
(i) Shoraj Singh v. Charan Singh, Civil Appeal No.6304 of 2021 (@ SLP (C) No. 13129/2018) order dated CS (Comm) no. 380 of 2020.
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508.10.2021,MANU/UP/1818/2018.
(ii) M/s OK Play India Pvt. Ltd. v. M/s A. P. Distributors & anr., 2021 SCC Online Del 4809, MANU/DE/2849/2021 in judgment dated 25.10.2021.
(iii) M/s OK Play India Pvt. Ltd. v. M/s A. P. Distributors & anr., CM (M) 346/2020, CM Appeal 10013/2020 (by the petitioner u/s 151 CPC for stay) decided on 17.08.2020.
(iv) Bharat Kalra v. Raj Kishan Chabra, CM (M) 429/2021 decided on 12.08.2021.
(v) Sagufta Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317.
(vi) Samsung Electronics Company Ltd. v. Mohammed Zaheer Trading as M/s Gujarat Mobiles & Or, CS (OS) 873/2015, decided on 24.07.2017 (reserved on 12.07.2017) 2017, SCC Online 9317 ( hon'ble High Court of Delhi).
(vii) Nirog Pharma Pvt. Ltd. v. Umesh Gupta & anr., CS (OS) No. 2517/2015, (2016) 236 DLT 354, judgment dated 21.10.2016, 2016 SCC Online Del 5961 : (2016) 235 DLT 354 ( hon'ble High Court of Delhi).
(viii) ComiteInterprofessionnel Du Vin De Champagne v. M/s Chinar Agro Fruit Products, 2017 SCC Online Del 10704.
(ix) Satya Infrastructure Ltd. v. Satya Infra & Estates Pvt., CS (OS) 1213/2011, 2013 SCC Online Del 508; (2013) 54 PTC 419, decision dated 07.02.2013, 2013 SCC Online Del 508: (2013) 54 PTC 419.
(x) Flamagas, SA v. Irfan Ahmed and ors., CS (Comm) 895/2016, MANU/DE/3484/2016, judgment dated 04.11.2016 (hon'ble High Court of Delhi).
(xi) Merck Sharp & Dohme Corp. & anr. V. Munish Thajur & anr., CS (OS) 2744/2015, 2017 SCC Online Del 11226, judgment dated 27.10.2017. (hon'ble High Court of Delhi).
(xii) Sandisk LLC v. Raj Enterprises, CS (Comm) 990/2018 and I.A. No. 15226/2018, decided on 26.11.2018, 2018 SCC OnLine Del 12594 (hon'ble High Court of Delhi).
(xiii) The Singer Company Limited S.A.R.L and Anr v. Ms. Anshu Singh, CS (Comm) 1584/2016, decided on 17.10.2017, 2017 SCC OnLine Del 110034 ( hon'ble High Court of Delhi).
(xiv) Relaxo Rubber Limited and Ors v. Selection Footwear and Ors, S.No. 1702/98 & I.A. 6999/98, decided on 18.08.1999, CS (Comm) no. 380 of 2020.
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6MANU/DE/0179/1999 (hon'ble High Court of Delhi).
(xv) Hero Honda Motors Ltd v. Shree Assuramji Scooters, CS (OS) No. 849/2004, decided on 29.11.2005, MANU/DE/2501/2005 (hon'ble High Court of Delhi).
(xvi) Galderma S.A. v. Velite Healthcare, CS (Comm) 1618/2016, decided on 31.07.2017 (hon'ble High Court of Delhi). (xvii) Alkem Laboratories Ltd v. Deccan Healthcare Ltd, CS (Comm) 1142/2018, decided on 15.03.2019 (hon'ble High Court of Delhi).
13. It has been elaborated in the above stated judgments that the purpose of Order VIII Rule 10 of the CPC is to expedite the process of law. The defendant cannot be permitted to burden the Court with the pendency of the suit by making technical and irrelevant submissions to somehow delay passing of a decree. The Court can invoke the provision to curb dilatory tactic, often resorted to by the defendant, by not filing the written statement by pronouncing the judgment against the defendant. At the same time, Court must be cautious and judge contents of the plaint and documents on record as being of an unimpeachable character, not requiring any evidence to be led to prove its contents.
14. In the case of Shoraj Singh v. Charan Singh, Civil Appeal No.6304 of 2021 @ SLP (C) No.13129/2018 decided vide order dated 08.10.2021 of the hon'ble Supreme Court of India, it was held that the provision of order VIII rule 1 of the CPC is mandatory in Commercial Courts under the Commercial Courts Act, 2015.
15. In the case of M/s Ok Play India Pvt. Ltd. v. M/s A.P.Distributors & anr., CM (M) 346/2020, CM APPL. 10013/2020 decided on 17.08.2021 by the hon'ble High Court of Delhi, it has been held that the written statement has to be filed along with the statement of truth, affidavit of CS (Comm) no. 380 of 2020.
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7admission and denial of documents and documents as well as an application of condonation of delay, if the written statement has not been filed within the statutory period of 30 days and 120 days have not lapsed from the date of service.
16. Review was filed against M/s OK Play India Pvt. Ltd. v. M/s A. P. Distributors & anr., CM (M) 346/2020, CM Appeal 10013/2020 (by the petitioner u/s 151 CPC for stay) decided on 17.08.2020. Review was dismissed with cost vide judgment dated 25.10.2021 in M/s OK Play India Pvt. Ltd. v. M/s A. P. Distributors & anr., 2021 SCC Online Del 4809, MANU/DE/2849/2021 observing as follows:
"With regard to the directions of this Court in the judgment dated 17th August, 2021 in para no.13 to the learned Commercial Court to consider the Course of action under order VIII Rule 10 CPC, the same reflect no error. The orders that can be passed under order VIII Rule 10 are "in relation to the suit" as to pronounce judgments or make further orders. This would be sufficient to enable the learned Commercial Court to exercise its discretion under order VIII Rule 5 CPC, if it is so desired."
17. In the judgment reported as M/s SCG Contracts India Pvt. Ltd. v. M/s KS Chamankar Infrastructure Pvt. Ltd., 2019 SCC Online SC 226 :
2019 (4) SCALE 574, hon'ble Supreme Court held that it is mandatory to file the written statement in commercial suit within 120 days from the date of service of summons and if he fails to file the same, then the time cannot be extended even under the inherent powers of Section 151 of the CPC.
CS (Comm) no. 380 of 2020.
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18. In the judgment reported as Mukul Taneja v. Metro Lifestyles India Pvt. Ltd., 2021 SCC Online Del 2779, hon'ble High Court of Delhi reiterated that the maximum period for filing a written statement under the CC Act was 120 days.
19. In the case of Bharat Kalra v. Raj Kishan Chabra, CM (M) 429/2021 decided on 12.08.2021, hon'ble High Court of Delhi has clarified and explained under what situation and circumstances the orders of the hon'ble Supreme Court in case "In Re cognizance for Extension of Limitation" shall be applicable. It was held that where the party is not vigilant and showing lethargic attitude, then no benefit of the hon'ble Supreme Court order can be given to him. The order of the hon'ble Supreme Court is meant to give benefit to those genuine litigants who were actually prevented due to pandemic and lockdown but where the Courts have started working even through virtual hearing, then the inaction and negligent conduct of litigants cannot give them, due to absence of complete lockdown, automatic right to claim benefit of this hon'ble Supreme Court order. The defendants cannot take it granted that extension order of the hon'ble Supreme Court is automatic in each case and thus, they have the right to get the delay condoned as a matter of right.
20. The application for condonation of delay was dismissed by the hon'ble Supreme Court in Sagufta Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 observing that what was extended was only "the period of limitation" and not the period up to which delay can be condoned in exercise of discretion. Order for extension was intended to CS (Comm) no. 380 of 2020.
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9benefit vigilant litigants who were prevented due to pandemic and lockdown from initiating proceedings within the period of limitation prescribed by general or special law.
21. The hon'ble High Court of Delhi in the case of Nirog Pharma Pvt. Ltd.
v. Umesh Gupta, (2016) 235 DLT 354 held as follows:
"...The present suit is also a commercial suit within the definition of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the courts should invoke the provisions of Order VIII Rule 10 to decree such cases". "...Resultantly, having been satisfied with the averments made and duly supported by document report of Local Commissioner and no written statement being on record, I deem it a fit case to for invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure..."
22. Also, the hon'ble High Court of Delhi in the case reported as Satya Infrastructure Ltd. vs. Satya Infra & Estates Pvt Ltd., 2013 SCC OnLine Del 508 held as follows:
"...I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex-parte evidence in the form of affidavit by way of examination-in-chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per amended CPC, besides being verified, is also supported by way of affidavits of the plaintiffs. I fail to fathom any reason for recording any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard CS (Comm) no. 380 of 2020.
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the counsel for the plaintiffs on merits qua the relief of injunction..."
23. Subsequently, the hon'ble High Court of Delhi in the judgment reported as Samsung Electronics Company Ltd. v. Mohammed Zaheer Trading, 2017 SCC OnLine Del 9317, pronounced the judgement, allowed the application and the suit was decreed against the defendants and in favour of the plaintiff with prayers of the plaint along with actual costs.
24. Also, the hon'ble High Court of Delhi in the judgment in Relaxo Rubber Limited and Ors. v. Selection Footwear and Ors., AIR 2000 Del 60, it was held as follows:
"...This is a suit for permanent injunction infringement of copyright and trade mark, passing off and rendition of accounts. summons were ordered to be issued to the Defendants on 14.8.1998 for the next date of hearing which was 14.10.1998. On 14.10.1998 the matter was adjourned to 22.1.1999. On 22.1.1999 a request for time to file written Statement and Reply was made and an adjournment was granted for this purpose. On 18.3.1999, which was the next date of hearing, yet on another request further time of four weeks for filing the written statement was granted. When the matter came up on 21.7.1999 before the Joint Registrar(o) it was noted that the written statement had not been filed and hence the matter was placed before court. On 6.8.1998 there was no appearance on behalf of Defendants. In these circumstances, Order 8 Rule 10 was relied upon by the learned counsel for the plaintiffs and it was pressed before me that the court should pronounce judgment against the Defendants. Arguments were heard in the suit and judgment was reserved..."
"...In these circumstances, in my view, this is a fit case for passing a decree in favour of the plaintiffs permanently CS (Comm) no. 380 of 2020.
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injuncting and restraining the Defendants through their proprietor/partners, servants, agents, representatives, dealers and others acting for and on its behalf from infringing or reproducing copies of 'artistic works' RELAXO in respect of which the plaintiffs are the owners and or to do anything, the exclusive right to do which is conferred upon the plaintiffs as owners of the said copyright. The Defendants through their proprietor/partners, servants, agents, representatives, dealers and others acting for and on its behalf are further restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in rubber chappals or any other footwear under the trade mark RELAXO or any other trade mark which may be deceptively similar to the plaintiffs registered trade mark RELAXO..."
"...The plaintiffs have sought rendition of accounts to ascertain the profits earned by the Defendants, which had been tentatively ascertained as Rs. 5 lacs so that a decree can be passed for the amount so found due on the basis of sales. No defense of the Defendants is forthcoming in these proceedings. I think it appropriate to decree a sum of Rs. 3 lacs as damages. For this reason the prayer for rendition of accounts is disallowed. The plaintiffs will, however, be entitled to all the costs incurred in these proceedings..."
25. Hon'ble High Court of Delhi in another case bearing CS (COMM) 1618/2016, Galderma S.A. v. Velite Healthcare, held as follows:
...4 (xiii) "The defendants failure to file its written statement till date demonstrates their lack of justification or defence of their infringing activities involving the plaintiff's trade mark and trade dress.
...9 Considering the fact that the plaintiff is the prior and registered user and going through the legal position as enunciated by the cases cited above, this Court is of the opinion that the defendant has no justification for the adoption and use CS (Comm) no. 380 of 2020.
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of virtually identical trade mark as well as trade dress as that of the plaintiff in relation to identical products. In any event, the defendant has not even placed a written defence on record.
...10 Accordingly, the present application is allowed and the suit is decreed against the defendant in accordance with prayers 27
(a) to (c) of the plaint along with the actual costs"
26. Hon'ble High Court of Delhi in another case bearing CS (OS) 849/2004, Hero Honda Motors Ltd. v. Shree Assuramji Scooters, held as follows:
"...I am in agreement with the aforesaid submission of learned counsel for the plaintiff that damages in such cases must be awarded and a defendant, who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of court proceedings. Any view to the contrary would result in a situation where the defendant who appears in Court and submits its account books would be liable for damages, while a party which chooses to stay away from court proceedings would escape the liability on account failure of the availability of account books. A party who chooses to not participate in court proceedings and stay away must, thus, suffer the consequences of damages as stated and set out by the plaintiff..."
"...In view of the aforesaid position, a decree for permanent injunction is passed in favor of the plaintiff and against the defendant restraining the defendant from selling motorcycle parts bearing the trademark HERO HONDA with or without the logo or any other trademark deceptively similar to the plaintiff's mark HERO HONDA and logo as also selling such goods in the packaging identical or deceptively similar to that of the plaintiff. A decree is also passed in favor of the plaintiff and against the defendant for the defendant to hand over the seized goods released by the Local Commissioner on superdari to the defendant so that the same can be destroyed by the plaintiff. A decree of damages is also passed in favor of the plaintiff and against the defendant for a sum of Rs. 5 lakhs. The plaintiff shall also be entitled to costs of the present proceedings..."
CS (Comm) no. 380 of 2020.
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1327. The facts of the case and the trajectory of the case, the averments as elaborated in the plaint as well as the application under order VIII rule 10 read with section 151 of the CPC, show that the plaintiff has filed the instant suit seeking inter alia permanent injunction against the infringement of registered trademark/label/trade dress of the plaintiff i.e. PAURUSH JIWAN (hereinafter referred to as the 'said trademark/label/trade dress') against the defendants by permanently to take down, remove or block/restrict access to the impugned videos/URLs/weblinks 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 malicious, false and/or wrong and/or misleading facts information and disparaging and/or infringing videos or part thereof posted and/or circulated on any aforesaid social media platforms and also from all media in the control of the defendants across the globe, including but not limited to defendants website, web pages, mobile application, etc. or from doing any other acts or deeds amounting to or likely to:
i) Infringement of plaintiff's registered trademark/label/trade dress of the plaintiff.
ii) Passing off of the plaintiff's well known trademark/label/trade dress,
iii) Infringement of registered copyright in the artistic work involved in the plaintiff's artistic features/label/packaging/trade dress.
28. It has been averred on behalf of the plaintiff that the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of CS (Comm) no. 380 of 2020.
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14parties dated 29.09.2020) {the defendant no. 3 (John Doe) initially} are engaged in producing and/or sharing and/or disseminating and/or publishing or causing to publish and/or produce and/or share and/or disseminate on the internet or through platforms including but not limited to those provided by the defendant numbers 1 and 2 (i.e. Google LLC and YouTube respectively) (the names of the Google LLC and You Tube LLC i.e. defendants numbers 1 and 2 initially were dropped from the array of the defendants) along with false, disparaging and/or infringing impugned video against the plaintiff (hereinafter referred to as the "impugned goods/business"). Vide order dated 17.07.2020, ex parte injunction was granted wherein the defendant numbers 1 and 2 was directed to take down, remove or block/restrict access to the impugned videos/URLs/weblinks 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 malicious, false and/or wrong and/or misleading facts information and disparaging and/or infringing videos or part thereof posted and/or circulated on any aforesaid social media platforms and also from all media in the control of the defendants, including but not limited to defendants website, web pages, mobile application, etc. or from doing any other acts or deeds amounting to or likely to:
(i) infringement of plaintiff's registered trademark/label/trade dress of the plaintiff.
(ii) passing off of the plaintiff's well known trademark/label/trade dress,
(iii) infringement of registered copyright in the artistic work involved in CS (Comm) no. 380 of 2020.
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15the plaintiff's artistic features/label/packaging/trade dress.
29. Vide order dated 17.07.2020, the defendants, their agents, officers, assigns, representatives were directed to forthwith block/remove the impugned videos/weblinks/URLs from their websites, web pages, mobile applications etc. The initial defendant numbers 1 and 2 (i.e. Google LLC and YouTube respectively) were directed to block/remove the impugned videos/weblinks/URLs of the defendant number 3 (John Doe) from their websites/portals from all media in the control of the defendants, including but not limited to their websites, mobile applications, other social media platforms. The defendants were also restrained from disposing off or dealing with their assets including its premises mentioned in memo of parties including its stocks in trade and such other assets. The defendant numbers 1 and 2 were also directed to furnish all the details of the defendant number 3 (John Doe).
30. Thereafter, the initial defendant numbers 1 and 2 (i.e. Google LLC and YouTube respectively) removed the impugned videos/weblinks/URLs of defendant number 3 (John Doe). The basic subscriber details of the defendant number 3 (John Doe) were sent by the counsel for defendant numbers 1 and 2, as submitted by her on 27.08.2020, on the official e mail of the Judicial Assistant/Reader of the Court with request that the same may not be communicated to the plaintiff till their applications are decided. Vide order dated 05.09.2020, as per law and in compliance of the judgment reported as CS Comm No. 322/2020 Dharampal Satyapal Sons Pvt. Ltd. v. Youtube LLC & ors. passed by hon'ble High Court of Delhi on 14.08.2020, vide order dated 05.09.2020, the names of the CS (Comm) no. 380 of 2020.
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16defendant number 1 (Google LLC) and defendant number 2 (You Tube LLC) had been deleted from the array of the parties as they had furnished the basic subscriber details of defendant number 3 (John Doe) to the plaintiff.
31. After the plaintiff was provided the relevant basic subscriber details pertaining to the identity of defendant number 3 (John Doe) and then, the identity of John Doe, defendant number 3 was revealed and they were added in the array of parties as defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) vide order dated 05.09.2020.
32. Subsequently, after being impleaded in the array of parties, both the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) were duly served, {defendant number 1 i.e. Double 33 (YouTube Channel Owner) was duly served through WhatsApp on 04.12.2020 and defendant number 2 i.e. Free Medicine Tips (You Tube Channel Owner) had been served through Email dated 05.12.2020}. However, the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) have failed to put in their appearance before this Court despite due service and were proceeded ex parte vide order dated 06.02.2021. The defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube CS (Comm) no. 380 of 2020.
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17channel owner) (as per amended memo of parties dated 29.09.2020) neither appeared before this Court nor filed any written statement along with their respective statements of truth, affidavits of admission and denial of documents as well their own documents as well as any application for condonation of delay within the stipulated period of 30 days from the dates of their service as well upto 120 days from the dates of their service till date.
33. Apparently, the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) were fully aware about the ongoing proceedings and interim orders against them till date, resulting into proceeding ex parte against them vide order dated 06.02.2021. The defendants numbers 1 and 2 i.e. Double 33 (YouTube Channel Owner) and Free Medicine Tips (You Tube Channel Owner) (as per the amended memo of parties) are not contesting this case by failing to appear, failing to file their respective written statements, failing to file their statements of truth, failing to file their respective affidavits of admission and denial of documents and failing to file their own documents. The same indicates towards the malicious intent of lingering on instant proceedings and delaying the disposal of the case.
34. Here, it would be important to refer to the judgment of the hon'ble High Court of Delhi in Parsvnath Developers Ltd v. Mr. 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 wherein it has been observed that in a case where the defendant has been proceeded ex parte and the CS (Comm) no. 380 of 2020.
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18plaint is supported with affidavit/statement of truth, evidence is not required to be recorded. Similar observations have been made in the judgment in Merck Sharp and Dohme Corp. v. Mr.Munish Thakur, 2017 SCC Online Del 11226.
35. In the present case under consideration, the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) failed to appear before the Court despite due service and were proceeded ex parte vide order dated 06.02.2021. As the averments made in the plaint are uncontroverted and unrebutted and the plaint is supported with the statement of truth and the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) are ex parte, evidence of the plaintiff is not required to be led in the case.
36. From the averments made in the plaint which is supported with the statement of truth, it is clear that the defendant number 1 i.e. Double 33 (You tube channel owner) and the defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) have knowingly, intentionally and dishonestly disparaged and/or defamed and/or infringed well known registered trademark/label/trade dress of the plaintiff by tarnishing the goodwill and reputation of the plaintiff through false/manipulated/misleading stated information and facts in the impugned videos/weblinks/URLs without any substantial and/or evidentiary documents proving their bogus claims and CS (Comm) no. 380 of 2020.
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19averments against the high quality goods/services of the plaintiff's which is illegal and in complete violation of plaintiffs' statutory and common law rights and amounts to infringement of the registered trademark/label/trade dress of the plaintiff.
37. As such, in the given circumstances, the Court shall be within its discretion to pronounce the judgment against such defendants i.e. the defendant number 1 i.e. Double 33 (YouTube Channel Owner) and the defendant number 2 i.e. Free Medicine Tips (You Tube Channel Owner) (as per the amended memo of parties dated 29.09.2020) which is in compliance of the precedents, as mentioned above and as per law under Order VIII Rule 10 of the CPC which reads as follows:
"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".
38. The averments made in the plaint (which is supported with the statement of truth) remain uncontroverted, unrebutted and unchallenged and can be presumed to be admitted as correct, as the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) who are ex parte, failed to appear before the Court, failed to file their respective written statements along with statements of truth, affidavits of admission and denial of documents of the plaintiff and failed to file their own documents as well as any application for condonation of delay within the stipulated period from the dates of their service. They have failed to contest the case or put up any defence.
CS (Comm) no. 380 of 2020.
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2039. On perusal of the record, it also transpires that the plaintiff has filed along with the plaint, the statement of truth, the copies/printouts of the two trademarks under the TM Act, the certificate of registration of the artistic work under the CR Act and documents as well as the affidavit of the Authorized Representative of the plaintiff under order XI Rule 6 of the CPC, applicable to the Commercial Courts and under section 65 B of the Indian Evidence Act, 1872 in respect of the electronic records. The coloured picture of the product of the plaintiff and two pictures/screenshots of the link of the plaintiff, picture/screenshot of the link of the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) have also been filed. The plaintiff has also filed the Legal Proceedings Certificate along with the plaint.
40. 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, not requiring any evidence to be led to prove its contents. This appears to be a clear case of negligence and inaction on part of the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) as they failed to appear before the Court despite due service and contest the case.
41. Accordingly, in view of the foregoing discussion and reasons, the CS (Comm) no. 380 of 2020.
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21application filed on behalf of the plaintiff against the defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020) under order VIII rule 10 read with section 151 of the CPC is hereby allowed.
42. Consequently, this commercial case is hereby decreed in favour of the plaintiff and against the defendant number 1 i.e. Double 33 (YouTube Channel Owner) and the defendant number 2 i.e. Free Medicine Tips (You Tube Channel Owner) (as per the amended memo of parties dated 29.09.2020) in terms of the prayer clause 33 (a) to (d) of the instant suit.
{The initial defendant numbers 1 and 2 i.e. Google LLC and YouTube respectively had removed the impugned videos/weblinks/URLs of the initial defendant number 3 (John Doe) whose identity was revealed as the defendant number 1 i.e. Double 33 (YouTube Channel Owner) and the defendant number 2 i.e. Free Medicine Tips (You Tube Channel Owner) (as per the amended memo of parties dated 29.09.2020)}.
43. As regards the order regarding rendition of accounts of profits earned by the defendant number 1 i.e. Double 33 (YouTube Channel Owner) and the defendant number 2 i.e. Free Medicine Tips (You Tube Channel Owner) (as per the amended memo of parties dated 29.09.2020) is concerned, as no document has been filed by the plaintiff nor this relief is pressed, no orders regarding the same are being passed.
44. As regards the costs, as no calculation or document showing the costs has been filed by the plaintiff, a notional cost of Rupees Ten Thousand only CS (Comm) no. 380 of 2020.
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22(Rs.10,000/- only) is also awarded to the plaintiff.
45. The defendant number 1 i.e. Double 33 (You tube channel owner) and defendant number 2 i.e. Free Medicine Tips (You tube channel owner) (as per amended memo of parties dated 29.09.2020), jointly and severally, are liable to make the payment of the above stated amount of costs in favour of the plaintiff.
46. The decree sheet be prepared accordingly. The prayer clause 33 (a) to (d) of the plaint shall also be part of the decree sheet.
47. 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 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.
48. After completion of formalities, the Junior Judicial Assistant/Ahlmad of the Court shall consign the file to the record room.
Digitally signed NIVEDITA by NIVEDITA
ANIL ANIL SHARMA
Date: 2021.12.01
SHARMA 16:51:47 +0530
Announced in the open Court (NIVEDITA ANIL SHARMA)
on this 01st day of December, 2021. District Judge Commercial Court-01, Shahdara, Karkardooma Courts, Delhi. 01.12.2021. (K).
CS (Comm) no. 380 of 2020.
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