Delhi High Court - Orders
Mr. Rajkumar Sabu vs Ms. Kaushalya Devi Sabu & Ors on 17 August, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 761/2016
MR. RAJKUMAR SABU ..... Plaintiff
Through: Mr. Chander M. Lall, Senior
Advocate with Mr. Divyakant Lahoti,
Mr. Parikshit Ahuja, Ms. Vindhya Mehra and
Ms. Ananya Chug, Advocates.
versus
MS. KAUSHALYA DEVI SABU & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 17.08.2022 I.A. 12816/2022 (Exemption from advance service to Defendants)
1. On account of the nature of relief claimed in I.A. 12815/2022 and for the reasons stated in the present application, Plaintiff is exempted from serving advance notice on the Defendants.
2. Application is allowed and disposed of.
I.A. 12815/2022 (For appointment of local commissioners)
3. Present application has been preferred by the Plaintiff under Section 75 read with Order 26 Rule 9 and Section 151 CPC, 1908, seeking appointment of Local Commissioners to visit and inspect the premises of the Defendants, their distributors, agents, franchises, etc., wherein Defendants according to the Plaintiff are packing, storing, stocking, distributing and/or selling the impugned products.
4. Issue notice to the Defendants, through all permissible modes, returnable on 06.09.2022.
Signature Not Verified Digitally Signed CS(COMM) 761/2016 Page 1 of 5 By:KAMAL KUMAR Signing Date:12.09.2022 19:45:035. Mr. Chander M. Lall, learned Senior Counsel appearing on behalf of the Plaintiff draws the attention of the Court to order dated 05.10.2020, wherein Defendants had stated that they shall place the new label before the Court with the registered trademark insignia superimposed on it as well as an order dated 05.11.2020, wherein Defendants had categorically stated that they had no intention of selling the products with label bearing the symbol ®. On 05.11.2020, Court had directed that Defendants would ensure that new labels do not bear the symbol ®. On 26.05.2022, this Court had reiterated that the order dated 22.01.2020, more particularly para 8 thereof, shall be complied with by both the parties, i.e., till further orders, neither the Plaintiff nor the Defendants, in their respective advertisements would claim themselves to be the true owners of the trademark 'SACHAMOTI' and that Defendants shall comply with the directions issued on 05.11.2020.
6. It is submitted that it was a clear position between the parties that Defendants shall not use, sell or advertise themselves as registered owners of the trademark 'SACHAMOTI' and despite this, Defendants continued their manufacturing and sale in packets bearing symbol ® and also made newspaper announcement admitting that they had sold the old stock, i.e., 33 lakh packets bearing symbol ®. This had triggered, filing of an application by the Plaintiff under Order 39 Rule 2A CPC, being I.A. 8441/2022 for initiation of contempt for violating the Court orders.
7. It is submitted that in response to the contempt application, Defendants filed a reply dated 09.07.2022, falsely stating that the Defendants have been circulating new packaging without symbol ® for their 1 Kg variant since 12.12.2020 and that Defendant No. 3 has already placed orders for the new packaging. The falsity of this stand is evident from the Signature Not Verified Digitally Signed CS(COMM) 761/2016 Page 2 of 5 By:KAMAL KUMAR Signing Date:12.09.2022 19:45:03 fact that Defendants are still blatantly continuing to violate the Court orders by selling packets claiming registration on trademark 'SACHAMOTI'. Screenshot of packaging of 'SACHAMOTI' packets, packed by Defendant No. 3 bearing packaging dates as 24.06.2022 and 21.07.2022, has been placed on record, indicating that Defendants are claiming to be the registered owners of the trademark 'SACHAMOTI' and are misguiding the customers. In these circumstances, it is urged and prayed that Local Commissioners be appointed to search the premises of the Defendants mentioned in para 22 of the application and take into custody the impugned products/packaging and/or promotional material reflecting that Defendants are registered owners of the trademark 'SACHAMOTI' and bearing the symbol ®.
8. I have heard learned Senior Counsel for the Plaintiff and in my view the Plaintiff has made out a case for appointment of the Local Commissioners.
9. Accordingly, Mr. Shikhar Khare, Advocate (Mobile No. 7506433495) and Mr. Sameer Sharma, Advocate (Mobile No. 9213857759) are appointed as Local Commissioners.
(a) Mr. Shikhar Khare, Advocate shall visit the premises at the following address:-
M/s. Sabu Sons, Survey 53, Lasudiya Mori, United Compound, Dewas Naka Indore, Madhya Pradesh-453771. Police Station: Lasudiya.
(b) Mr. Sameer Sharma, Advocate shall visit the premises at the Signature Not Verified Digitally Signed CS(COMM) 761/2016 Page 3 of 5 By:KAMAL KUMAR Signing Date:12.09.2022 19:45:03 following address:-
Sabu Trade Pvt. Ltd. Mill, 3/11, Kammalapatti Main Road, Panamarathupatti Village, Salem, Tamil Nadu-636204. Police Station: Panamarathupatti.
10. Local Commissioners shall visit the aforesaid premises on 18.08.2022 and shall search, seize and take into custody the impugned products as well as the packaging material bearing the ® mark with 'SACHAMOTI' or having any reference to the trademark 'SACHAMOTI' being registered in the name of Defendants and make an inventory of the same. Local Commissioners may also take into custody bill books, books of accounts, or any other related material for the period post 05.11.2020 till date concerning the aforementioned products/packaging.
11. Local Commissioners along with the Representative(s) of the Plaintiff and/or its counsel shall be permitted to enter the premises of the Defendants, as aforementioned.
12. Local Commissioners shall seize the impugned products and hand over the same to the Defendants on superdari, upon the Defendants furnishing an undertaking that it shall produce the goods, so seized, before the Court, as and when further directions are issued in this regard.
13. Local Commissioners shall be permitted to take photographs/videos of the execution of the Commission. They shall also be entitled to seek police assistance or protection of the Local Police Station, if so required, for the purpose of execution of the order of this Court. The SHO of the concerned Police Station is directed to provide necessary assistance to the Local Commissioners, if sought for.
Signature Not Verified Digitally Signed CS(COMM) 761/2016 Page 4 of 5 By:KAMAL KUMAR Signing Date:12.09.2022 19:45:0314. In case the premises as aforementioned are found locked, the Local Commissioners are at liberty to break open the locks.
15. Plaintiff shall serve a copy of this order upon the Defendants along with paper book of the suit at the time of execution of the proceedings.
16. Fees of Local Commissioners is fixed as Rs.1,50,000/- each in addition to travel, boarding and lodging expenses as well as other out of pocket and miscellaneous expenses. Fees of the Local Commissioners shall be paid in advance by the Plaintiff.
17. Report of the Local Commissioners shall be filed within two weeks of the execution of the Commissions.
18. This order shall not be uploaded on the website of this Court till execution of the Commission by the Local Commissioners. Learned counsel for the Plaintiff shall ensure that intimation of the execution of the Commissions is given to the Registry as soon as the same are executed.
19. Copy of this order be given to learned counsel for the Plaintiff dasti under the signatures of the Court Master.
JYOTI SINGH, J AUGUST 17, 2022/rk Signature Not Verified Digitally Signed CS(COMM) 761/2016 Page 5 of 5 By:KAMAL KUMAR Signing Date:12.09.2022 19:45:03