Delhi District Court
M/S East African (I) Remedies Pvt. Ltd vs M/S Wallace Pharmaceuticals Ltd on 8 April, 2010
IN THE COURT OF SHRI HARISH DUDANI,
ADDITIONAL DISTRICT JUDGE15 (CENTRAL) : DELHI
Suit No.12/08/01
M/s East African (I) Remedies Pvt. Ltd.
J57, Rajouri Garden,
New Delhi - 110 027 ............Plaintiff
Versus
1. M/s Wallace Pharmaceuticals Ltd.
Regd. Office DTC EDG Complex,
Panjim (Goa) 403001
Regional Office :
th
402, 4 Floor,
H2, BlockC,
Community Centre,
Naraina Vihar, New Delhi - 110 028
Service through
Mr. A. C. Kohli,
Regional Manager.
2. M/s Tinkle Pharma
136/2, Badli Village,
Delhi - 110042
(Sole Distributors of defendant no. 1). .........Defendants
Date of Institution : 18.07.2001
Date of Decision : 08.04.2010
Suit No. 12/08/01 1
J U D G E M E N T
1. This is a suit for permanent injunction, passing off, damages and delivery up etc. alongwith costs of the suit filed by the plaintiff.
2. The plaintiff has filed the abovenoted suit stating therein that the plaintiff is a private limited company registered under the Companies Act and Shri R. K. Jain who is the Managing Director of plaintiff is duly authorised to sign, verify and file the present suit and to depose to the facts of the present case and competent to do all other acts for the conduct of the business of the company. The plaintiff company has been engaged in the business of manufacturing and marketing pharmaceuticals for the last sixteen years and is one of the reputed companies in the pharmaceutical trade. Out of many well known trade marks, trade mark RIVOX was adopted and used by the plaintiff since the year 1990 in respect of life saving drug i.e. AMOXYCILLINE and plaintiff's one application for registration of the said trade mark is pending under Application No. 877264 in Class 5 in respect of pharmaceutical preparation. It is stated that the plaintiff has obtained the FDA approval pertaining to the trade mark Suit No. 12/08/01 2 before manufacturing and marketing the drug and has been using the said trade mark since 1990 continuously, regularly, extensively and without any interruption in relation to the pharmaceutical products. The trade mark RIVOX has acquired a unique reputation and goodwill in the eyes of medical professionals, pharmaceutical industry and general public at large and the said drug is exclusively associated with the plaintiff. The plaintiff is the first adopter of the said trade mark in relation to the abovesaid goods. It is stated that if any other person without the leave and consent of the plaintiff uses the said trade mark, it would amount to violation of the plaintiff's legal rights amounting to passing off the goods and business of the said person as the goods and business of the plaintiff. The plaintiff has incurred considerable expenditure on advertisement and promotional expenses in relation to the said trade mark. The plaintiff has acquired excellent reputation and goodwill pertaining to the said trade mark in the market and the defendants are passing off their goods as the goods of the plaintiff.
3. It is stated in the plaint that during the month of September, 2000, the plaintiff learnt that the defendant has introduced a similar product bearing the trade mark 'REVOX' which is Suit No. 12/08/01 3 almost identical trade mark and/or deceptively similar to that of the plaintiff. By adopting and using the said trade mark and marketing its products under the said trade mark, the defendant is passing off and is likely to pass off their product as that of the plaintiff. The plaintiff served a notice dated 25th September, 2000 to defendant no. 1 requesting it not to use the said trade mark but defendant no. 1 vide its reply dated 27th February, 2001 refused to accede to the request of the plaintiff and raised the defence that the two trade marks 'RIVOX' and 'REVOX' are different and distinct and there was no scope of confusion in the market. It is also stated in the plaint that due to adoption and use of the trade mark 'REVOX' in respect of the similar product, the plaintiff has suffered damages and , therefore, there is a need to restrain the defendant from manufacturing and passing off their product under the trade mark 'REVOX'. It is stated that the trade mark 'REVOX' is adopted by the defendants in respect of multiviatmin whereas the plaintiff's product is antibiotic preparation used as life saving drug. It is stated that the defendants are residing and carrying on business within the territory of this Court and defendant no. 1 is having its regional office within the territory of this Court and their goods are also available in Delhi also, hence, this Suit No. 12/08/01 4 Court has got the jurisdiction to entertain the present suit. It is prayed that decree for perpetual injunction restraining the defendant, its servants, retailers, stockists, distributors, representatives and agents from manufacturing, selling, offering for sale, stocking, advertising, directly or indirectly dealing in pharmaceutical preparations under the trade mark REVOX or any other trade mark which is either identical with or deceptively similar with the trade mark of the plaintiff, be passed. It is further prayed that an order for relief of damages in respect of profits illegally earned by the defendant by manufacturing and selling pharmaceutical preparations under the impugned trade mark and a decree for the sums so ascertained in favour of the plaintiff and against the defendant and also for an order for delivery up for purposes of destruction of all the impugned wrappers, cartons, strips, labels, dies and any other infringing copies or media used by the defendant in pursuit of its illegal activities alongwith costs of the suit be also passed.
4. The defendant No.1 has filed written statement and has contested the suit. In the written statement, the defendant No.1 has taken the objection that defendant no. 1 has adopted the trade mark 'REVOX' for a pharmaceutical Suit No. 12/08/01 5 preparation which is composition of Beta Carotene with Vitamin 'C', 'E' and minerals ever since March, 1998 and rd the trade mark REVOX which was applied for on 3 April, 1998 vide application no.797488 was subsequently registered under no. 797488 in favour of the defendant NO.1. Defendant no. 1 had, before adopting the trade mark taken a search report for the trade mark REVOX from the Trade Marks Registry and and on receiving a clear search report, adopted the said trade mark. Subsequently, the defendant applied to the Food and Drug Administration and were subsequently awarded a license to manufacture the drug bearing the trade mark REVOX on 17th October, 1998. Defendant no. 1 commenced manufacture of the said drug in February, 1999 and began marketing and distributing the pharmaceutical preparation being the trade mark REVOX in April, 1999. The product of defendant no. 1 bearing the trade mark REVOX has been well received and highly regarded in the pharmaceutical circle. The defendant no. 1's product is Schedule H drug, thereby being one that cannot be sold without the prescription of a registered medical practitioner. The said product has been heavily promoted by the defendant no. 1 and the expenses on promotion for the period 199900 & 2000 Suit No. 12/08/01 6 01 are Rs.76,33,000 and Rs.53,57,000 respectively. The products of the defendant No.1 being of high quality and well regarded in the medical fraternity has translated into large sales for the defendant's product REVOX and the quantity and sales figures for the year 199900 & 200001 are as under : Year Quantity Value 199900 1005408 2,10,34,302 200001 948520 1,97,90,897
5. It is stated that the defendant no. 1 is now associated as proprietor of the trade mark REVOX as is clearly evident from the sales of the product, which, being a Schedule H product can only be sold through a medical prescription. The defendant no. 1 is unaware of any other manufacturer adopting the trade mark REVOX and were surprised when th they received a letter dated 25 April, 2000 from the counsel representing the plaintiff claiming proprietorship of the trade mark RIVOX and calling upon the defendant to give up use of REVOX and the defendant vide their reply dated 27th February, 2001 denied their claims and thereafter the plaintiff waited for about 6 months to institute the suit. It is stated that it is the defendant no. 1 who is the proprietor of Suit No. 12/08/01 7 the trade mark REVOX, having adopted the trade mark after ascertaining whether there were any conflicting marks in the field. It is stated that the plaintiff has concealed the facts both of their sales figures as well as promotional expenses, which would help ascertaining the goodwill of a product. It is denied that the plaintiffs are in the market with the trade mark RIVOX for any substantial period of time. It is stated that both drugs are Schedule H drugs and, therefore, there are natural checks and balances in the system to protect the consumer. It is stated that the plaintiff has failed to establish any reputation and goodwill by virtue on account of sales or advertising. It is stated that the plaintiff is not the proprietor of the trade mark RIVOX and the defendant no. 1 by virtue of voluminous sales and advertising is the proprietor of the trade mark REVOX for pharmaceutical preparations. It is denied that Shri R. K. Jain is authorised to sign, verify and institute the present suit. It is denied that RIVOX is a well known trade mark. It is stated that the alleged application for trade mark of the plaintiff is well after the application of the defendant No.1. It is stated that the suit is liable to be dismissed.
6. The plaintiff has filed replication to the written statement of Suit No. 12/08/01 8 defendants. In the replication, the plaintiff has reiterated the contents of plaint and has controverted the allegations of the defendants as alleged in the written statement. It is denied that the defendant no. 1 had, before adopting the trade mark, taken a search report for the trade mark REVOX from the Trade Marks Registry and on receiving a clear search report, adopted the said trade mark. It is denied that the product of defendant no. 1 bearing the trade mark REVOX has been well received and highly regarded in the pharmaceutical circles. It is also denied that the defendant no. 1 was unaware of the plaintiff's products with the trade mark RIVOX. It is also denied that defendant no. 1 is the proprietor of the trade mark REVOX.
7. From the pleadings of the parties, following issues were framed by my ld. Predecessor on 27.01.2004.
(i) Whether the plaint is filed by a person duly authorised on behalf of the plaintiff's company? OPP.
(ii) Whether the plaintiff has acquired trade mark in the name of 'RIVOX'. If so, from which date and effect thereof? OPP.
(iii) If the answer of issue No. 2 is in affirmative, whether the defendant has violated the plaintiff's trade mark by using 'REVOX'. If so, to what effect.? OPP.Suit No. 12/08/01 9
(iv) Whether the plaintiff is entitled to injunction? OPP.
(v) Whether the plaintiff is entitled to damages, as claimed. If not, to what amount? OPP.
(vi) Relief.
8. In order to prove its case, plaintiff examined Shri R. K. Jain, Director as PW1 and PE was closed on 04.08.2007.
9. Examinationinchief of DW1 Shri Sanjay Kumar Sharma was recorded on 23.11.2007 and vide order dated 23.11.2007 Shri Vipin Kumar Kashyap, Advocate was appointed as LC to record crossexamination of DW1 who recorded the same on 29.11.2007. Dr. Virender Kumar was examined as DW2 and DE was closed on 07.02.2008.
10. I have heard ld. Counsel for parties and carefully perused the record. My findings on the specific issues are as follows: Issue No.1
11. In para 1 of the plaint, the plaintiff has stated that it is a private limited company registered under the Companies Act and Shri R.K. Jain is the Managing Director and is duly authorised to file the suit, sign and verify the pleadings and Suit No. 12/08/01 10 depose to the facts of the case. In written statement, the defendant No.1 has denied that Shri R.K. Jain is authorised to sign, file and institute the present suit.
12. In order to prove its case, the plaintiff has examined Shri R.K. Jain as PW1 who adduced evidence by way of affidavit Ex.PW1/A. In para 2 of affidavit Ex.PW1/A, Shri R.K. Jain/PW1 has stated that he is director of the plaintiff company and duly authorised to represent the plaintiff company vide resolution dated 16.07.2001, copy of which is Ex.PW1/1. The contention of learned counsel for defendant is that as per copy of resolution Ex.PW1/1 which has been filed on record by plaintiff, Shri R.K. Jain is authorised to represent the plaintiff company, relating to the brand of company i.e. RIVOX and the said resolution does not authorised Shri R.K. Jain to sign, verify and institute the present suit.
13. Order 29 rule 1 CPC provides that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. In Nibro Ltd. vs. National Suit No. 12/08/01 11 Insurance Co. Ltd., MANU/DE/0138/1991 it was held that Order 29 rule 1 CPC provides for subscription and verification of pleadings and states that in suits by or against the corporation, any pleadings may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. It was held :
15. This court in Oberoi Hotels (India) Pvt.
Ltd. (Suit No. 469 of 1966261968), while dealing with the scope of Order 29 of the Code of Civil Procedure has observed as follows :
"Learned counsel for the plaintiff lastly argued that Shri Ram Lal Chaudhary had stated that he had authority to file the suit as a principal officer of the plaintiff company even apart from the resolution marked 'A'. He did not say so. But how does that help? The authority of a principal officer of a company in relation to suits filed on behalf of the limited company does not extend beyond what is laid down in Order 29 of the Code of Civil Procedure. That provision does not entitle the principal officer of a company to file a suit on its behalf and for that the authority has to be found either in the articles of association of the company or in the resolution of its board of directors. In the articles of association of several companies, provision is generally made authorising their managing directors and other officers to file and defend suits on their behalf. Similarly, the Suit No. 12/08/01 12 board of directors of a company can authorise the institution of a suit on behalf of the company by a resolution. In the case of some companies the articles empower the managing director or directors to appoint general attorneys and general managers and given them authority to institute suits on behalf of the company. But in the absence of any proof in regard to any such power having been conferred on Shri Ram Lal Choudhary, it is not possible to accept his statement that he was authorised to file the suit as the principal officer of the plaintiff hotel.
16. I, therefore, hold that although the plaint has been signed and verified by a person duly authorised to do so on behalf of the plaintiff company, it has not been proved that the suit has been instituted by any such person. The issue is consequently decided against the plaintiff.
17. Similarly, in South India Insurance Co. Ltd. (Suit No. 68 of 19691941974), this court has dealt with a similar objection as raised by the defendant in this case and observed that a company being a corporate body or a juristic person has to act through somebody and that the person has to be specifically authorised to institute the suit. In Notified Area Committee, AIR 1935 Lah 345, the Lahore Bench considered the scope of Order 29, rule 1 of the code of Civil Procedure Suit No. 12/08/01 13 and it has been observed thus (at page 346) :
"Similarly, Order 29, rule 1, Civil Procedure Code, also does not help the appellant. It merely defines the person who is authorised to sign or verify the pleadings on behalf of the corporation (in this case the committee). It, therefore, comes into operation only after the proceedings have been validly started and cannot be utilised to authorise an unauthorised person to institute suits on behalf of the corporation."
18. In Seth Kirpal Chand v. Traders Bank Ltd. AIR 1954 J & K 45 the court, while dealing with the question that though there is no original authorisation, a subsequent ratification could render it legitimate, has approved the view taken by the Division Bench of the Lahore High Court in Notified Area Committee, AIR 1935 Lah 345 and observed thus (at page 47) :
"Here the initiative to institute the suit could be properly transferred to the manager under article 105 of the articles of association and, therefore, the subsequent ratification of the act of the agent by the principal could cure the original defect."
19. Thus, the Division Bench accepted the view that there should be a specific authorisation in favor of a person permitting him to institute a suit.
Suit No. 12/08/01 14
20. In University of Kashmir v. Ghulam Nabi Mir AIR 1978 (NOC) 114 (J & K), the court has observed that signing and verification of the plaint is different from filing the suit by a competent person.
21. In the case of Food Corporation of India, MANU/PH/0120/1981, while considering the issue whether an application was filed by a competent person, the court has observed that Order 29, rule 1, does not empower an officer to conduct the case on behalf of the corporation. Only the limited power to sign and verify the pleadings has been conferred upon the officer.
27. On the analysis of the judgments, it is clear that Order 29, rule 1 of the Code of Civil Procedure does not authorise persons mentioned therein to institute suits on behalf of the corporation. It only authorises them to sign and verify the pleadings on behalf of the corporation.
29. .............................................It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has farreaching effects. It often affects the Suit No. 12/08/01 15 policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say such a power can be conferred by the board of directors only by passing a resolution in that regard.
Chapter IV of the Delhi High Court (Original Side) Rules deals with the question of presentation of suits. Under this rule, a suit can be presented by a duly authorised agent or by an advocate duly appointed by him for the purpose. This authorisation, in my view, in the case of a company can be given only after a decision to institute a suit is taken by the board of directors of the company. The board of directors may in turn authorise a particular director, principal officer or the secretary to institute a suit.
14. Learned counsel for the plaintiff has contended that in view of decision of Hon'ble Supreme Court in United Bank of India vs. Naresh Kumar and Others, AIR 1997 Supreme Court 3, it would not be appropriate to the plaintiff if the plaintiff is to be non suited for a technical reason. However, learned counsel for the defendant has contended that decision of United Bank of India vs. Naresh Kumar and Others (supra) is not applicable to the facts of the present case as that case was a suit for recovery filed by a Suit No. 12/08/01 16 nationalized bank involving public money and the said case was relating only to the competence of the person signing the plaint but in the present suit, the dispute is also as to whether the suit has been instituted by duly authorised person or not. Learned counsel for the defendant has contended that the plea as raised by learned counsel for plaintiff that in view of decision of Hon'ble Supreme Court in United Bank of India vs. Naresh Kumar and Others (supra), the issue No.1 is to be decided in in favour of the plaintiff has no force as similar proposition was considered by Hon'ble High Court of Delhi in M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another, AIR 2000 Delhi 239 and it was held not sustainable in case of objection regarding filing of the suit by not duly authorised person.
15. In M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another (supra), Issue No.3 was framed to the effect that whether the plaint has been signed, verified and presented by a duly authorised person and on findings on the said issue, Hon'ble High Court observed that the plaint is signed and verified and suit instituted by K.L. Rajgarhia, PW2 and in Para 1 of the plaint Suit No. 12/08/01 17 it is alleged that K.L. Rajgarhia was authorised to institute suit by virtue of a resolution dated 2nd July 1976 passed by the Board of Directors of the plaintiff company. In paras 2 and 3 of the affidavit filed by said K.L. Rajgarhia it is averred that he had been duly authorised under the Memorandum and Articles of Association of the company as also by a th resolution passed by the Board of Directors on 26 July 1976, to institute the suit. In the case in hand learned counsel for the plaintiff has contended that Shri R.K. Jain is duly authorised to file the suit, he being one of the directors of the company and in support of his submissions he has invited attention of the court to the provisions contained in Order 29 rule 1 of the CPC and also decision in United Bank of India vs. Naresh Kumar and Others (supra). Our Hon'ble Hon'ble High Court in M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another (supra) observed: ................................Rule1 the said Order 29 deals with signing and verification of the plaint and not the institution of the suit by or against the Corporation. In Union Bank of India's case (supra) out of the many issues framed in the suit filed for recovery of Rs.1,40,553.91 by the bank, issue No.1 was to the effect - whether the plaint is duly signed and verified by a Suit No. 12/08/01 18 competent person? Issue No.2 was whether the defendant No.1 raised a loan of Rupees 50,000/ from the plaintiff bank on 12484 and executed a demand promissory note hypothecation of goods agreement, letter of loan and other documents in favour of the plaintiff Bank? Trial Judge returned the finding on said issue No.1 against the Bank. On issue No.2 it was found that defendant No.2 was liable to pay only a sum of Rs.55,699.20 as the principal amount plus interest. In appeal, Additional District Judge reversed the finding of the trial Court on issue No.2 and he came to the conclusion that the bank had been able to prove that defendant No.1 had taken a loan of Rs.50,000/. However, upholding the findings of the trial Court on issue No.1 the appeal was dismissed. Regular Second Appeal taken out against the decision of the Additional District Judge by the bank was, however, dismissed in limine by the Punjab & Haryana High th Court on 30 August 1993. As is manifested from Para 8 of the report the only question which arose for consideration before the Supreme Court in the S.L.P. filed by the bank was whether the plaint was duly signed and verified by a competent person. It was in the said background that S.L.P. was allowed holding that L.K. Rohatgi must have been authorised to sign the plaint and in any case the bank had ratified the Suit No. 12/08/01 19 action of L.K. Rohatgi in signing the plaint and thereafter he had continued with the suit. In my view, in the facts and circumstances of this case, the plaintiff cannot derive any advantage from the above decision in the matter of said K.L. Rajgaria being authorised to file the present suit on behalf of the plaintiff company. In the decision in M/s.Nibro Limited v. National Insurance Co. Ltd., AIR 1991 Delhi 25 after taking note of a series of decisions on the subject the view taken by this Court was that unless a power to institute suit is specifically conferred on a particular director he has no authority to institute suit on behalf of the company. It must, therefore, follow that although the plaint was signed and verified properly but the suit was not instituted by a duly authorised person on behalf of the plaintiff. Issue is answered accordingly.
16. In view of aforesaid decision in M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another (supra), the reliance as placed by learned counsel for plaintiff on the devision of United Bank of India vs. Naresh Kumar and Others (supra) is of no help to the plaintiff.
17. The plaintiff has only relied on the resolution Ex.PW1/1 in Suit No. 12/08/01 20 which it is stated that Shri R.K. Jain, Director of the company is authorised to represent the company in the suit for permanent injunction, damages, passing off, etc. against M/s Wallace Pharmaceuticals Ltd, relating to the brand of the company i.e. RIVOX. The resolution Ex.PW1/1 does not authorise Shri R.K. Jain to sign, verify and file the plaint on behalf of the plaintiff, although, the plaint has been signed and verified by Shri R.K. Jain. The plaintiff has not filed any Memorandum and Articles of Association of the plaintiff by which Shri R.K. Jain, has even been authorised to sign and file the plaint being director of the plaintiff company. The plaintiff has failed to prove that Shri R.K. Jain is authorised to institute the suit on behalf of the plaintiff. In the circumstances, this issue is decided in favour of the defendant and against the plaintiff.
Issue No.2
18. Case of the plaintiff is that trade mark RIVOX was adopted and used by the plaintiff since 1990 and since then the plaintiff has been using said trade mark continuously and regularly. In order to prove its case, the plaintiff examined Shri R.K. Jain, the Director of the plaintiff company as PW1 who adduced his evidence by way of affidavit Ex.PW1/A. In Suit No. 12/08/01 21 para 4 of the affidavit Ex.PW1/A, the plaintiff has stated that the trade mark RIVOX was adopted and used by the plaintiff since 1990 in respect of life saving drug i.e. AMOXYCLLINE and the plaintiff is first adopter and user of said trademark and plaintiff is first company who has been granted permission to manufacture from State Drug Controller cum Director Health Service, Haryana Chandigarh (FDA) vide letter file No.1/4053DrugsI90/1081 dated 06.02.1990 to manufacture and market the products by the name of RIVOX and the said letter bearing file No.1/405 3DrugsI90/1081 dated 06.02.1990 and approval items/formulation list are Ex.PW1/2 & Ex.PW1/3 respectively. Ex.PW1/2 is the letter No.1/4053DrugsI 90/1081 dated 06.02.1990 issued by State Drug Controller cum Director Health Service, Haryana Chandigarh (FDA) whereby M/s East African (India) Remedies has been granted permission to manufacture additional items as per the list enclosed which is Ex.PW1/3 and list Ex.PW1/3 contains items namely RIVOX - 500 (each capsule contains: Amoxycillin Trihydrate equivalent to Amoxycillin 500 mg. I.P.) and REVOX Dry Syrup (each 5ml of reconstituted Syrup contains: Amoxycillin Trihydrate equivalent to Amoxycillin 125 mg I.P.). Hence, as per Suit No. 12/08/01 22 Ex.PW1/2 and Ex.PW1/3, the plaintiff was granted permission by State Drug Controller cum Director Health Service, Haryana Chandigarh (FDA) to prepare formulation under the name of RIVOX - 500 capsules and RIVOX Dry Syrup and the letter Ex.PW1/2 is dated 06.02.1990. In the crossexamination of PW1 no suggestion has been given to the effect that the plaintiff was not granted any permission vide letter Ex.PW1/2 and its enclosed list Ex.PW1/3 to manufacture drugs under the name of RIVOX 500 capsules and RIVOX Dry Syrup. The testimony of PW1 to the effect that vide letter Ex.PW1/2 permission was granted to the plaintiff by State Drug Controller cum Director Health Service, Haryana Chandigarh (FDA) to manufacture RIVOX
- 500 capsules and RIVOX Dry Syrup as contained in list Ex.PW1/3 has remained unrebutted. In the cross examination of PW1 the defendant has given suggestion to the effect that it is correct that trade mark RIVOX was used by plaintiff for the first time in the year 1990. By giving this suggestion to PW1 in his crossexamination, the defendant has admitted that the plaintiff used trade mark RIVOX for the first time in 1990. The plaintiff has filed invoices Ex.PW1/4 to Ex.PW1/37 in order to prove that the plaintiff has been selling the products under the trade mark RIVOX and the Suit No. 12/08/01 23 first invoice which is Ex.PW1/4 is dated 12.03.1990. Hence, as per evidence educed by plaintiff, the plaintiff has acquired trade mark RIVOX from 12.03.1990. This issue stands answered accordingly.
Issue No.3.
19. In para 7 of the plaint, the plaintiff has stated that during the month of September, 2000, the plaintiff came to know that the defendants have introduced in the market similar products bearing the trade mark REVOX which is almost identical trade mark and/or deceptively similar as that of the plaintiff's trade mark. In para 13 of reply on merits in written statement, the defendant No.1 has stated that defendant No.1 adopted the trademark REVOX in respect of pharmaceutical products which are a composition of Beta Carotene with Vitamin C, E and minerals way back in March 1998 and the said trademark REVOX was applied for on 03.04.1998 and was alloted application No.797488 and the defendant No.1 had taken a search report for the trademark and on receiving a clear search report adopted the said trademark and thereafter, the defendant applied to the Food and Drug Administration and were subsequently awarded a license to manufacture the drug bearing the trade mark Suit No. 12/08/01 24 REVOX on 17.10.1998 and thereafter, the defendant No.1 commenced manufacture of the said drug in February 1999. In para 13 of reply on merits in written statement, the defendant No.1 has further stated that defendant No.1 is unaware of any other manufacturer bearing the trademark REVOX and was surprised when they received a letter dated 25.04.2000 from the counsel representing the plaintiff claiming proprietorship of the trade mark REVOX and calling upon the defendant to give up the use of REVOX and the defendant No.1 through letter dated 27.02.2001 replied to the plaintiffs denying their claims. The defendant No.1 has pleaded that the trademark REVOX of the defendant has been subsequently registered vide application No.797488.
20. Section 34 of the Trade Marks Act,1999 reads as under : "34. Saving for vested rights. Nothing in this Act shall entitle the proprietor or an registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior
(a) to the use of the firstmentioned trade mark in relation to those goods or services by the proprietor or a predecessor in title of his; or Suit No. 12/08/01 25
(b) to the date of registration of the first mentioned trade mark in respect of those goods or services in the name of the proprietor of a predecessor in title of his;
whichever is the earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark.
21. Section 35 of Trade Mark Act, 1999 provides that priority of use prevails as compared to registration and it lays down that ordinarily it is the prior user of the trade mark who is the owner of trade mark.
22. In Century Traders Vs. Rohan Lal Duggar & Co. & Others 1978 Delhi 250, reference was made to Consolidated Foods Corporation vs. Brandon and Co. Private Ltd., AIR 1965 Bom 35 wherein it was observed : "12. A trader acquires a right of property, in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed or any greater rights than what Suit No. 12/08/01 26 already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout the State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the Statute. Common law rights are left wholly unaffected. Priority in adoption and use of a trade mark is superior to priority in registration.
........................................................................
14. Thus, the law is pretty well settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trademarks.
23. In N. R. Dongre & others. vs. Whirlpool Corporation and others, AIR 1995 Delhi 300, it was held that : Suit No. 12/08/01 27
"29. Thus the right created by Section 28(1) of the Act in favour of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act namely Sections 27(2), 33 etc. Neither Section 28 nor any other provision of the Act bars an action for passing off by an anterior user of a trade mark against a registered user of the same. In other words registration of a trade mark does not provide a defence to the proceedings for passing off as under
Section 27(2) of the act a prior user of trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof. Again this right is not affected by Section 31 of the Act, under which the only presumption that follows from registration of a mark is its prima facie evidentiary value about its validity and nothing more. This presumption is not an unrebuttable one and can be displaced. Besides Section 31 is not immune to the overriding effect of Section 27 (2)."
"The rights of action under Section 27(2) are not affected by Section 28(3) and Section 30 (1)(d). Therefore, registration of a trade mark under the Act would be irrelevant in an action for passing off. Registration of a trade mark in fact does not confer any new right on the proprietor thereof than what already existed at common law without registration of the mark.
The right of good will and reputation in a trade mark was recognized at common law even before it was subject of statutory law. Prior to Suit No. 12/08/01 28 codification of trade mark law there was no provision in India for registration of a trade mark. The right in a trade mark was acquired only by use thereof. This right has not been affected by the Act and is preserved and recognized by Sections 27(2) and 33."
24. In Bimal Govindji Shah vs. Panna Lal Chandu Lal, 1997 PTC (17) it was held that :
9."..............................Thus a conjoint reading of the aforesaid provisions persuaded me to conclude on a reading of the aforesaid provisions conjointly the natural deduction is that the right conferred by Section 28(1) of the Act in favour of a registered proprietor of a trade mark is not an absolute right but is subject to the other provisions of the Act namely Section 27(2) and 33. It is also to be noted that neither Section 28 nor any other provision of the Act prohibits an action for passing off by an anterior user of a trade mark against a registered user of the same. In other words registration of a trade mark does not provide a defence to the proceedings for passing off as provided for under Section 27(2) of the Act. A prior user of a trade mark is entitled to maintain an action against a subsequent user of identical trade mark including registered user thereof.Suit No. 12/08/01 29
25. As per aforesaid judgements, it is well settled that registration is irrelevant in case of passing off and a prior user of trade mark is entitled to maintain an action against the subsequent user of identical trade mark including registered user thereof.
26. Learned counsel for the defendants has contended that trademark REVOX was adopted by defendants honestly and moreover, the plaintiff has not been using the trademark RIVOX continuously and has only shown a casual user while the product of the defendant No.1 under trademark REVOX is being sold in huge quantity and the defendants have spent huge amount in promotion of the said drug. The plea as raised by defendant is that the trademark REVOX was adopted by the defendant honestly and the defendant had also applied for registration of trademark REVOX on 03.04.1998 vide application No.797488 and the defendant No.1 has taken search report for the said trademark. In Goenka Institute of Education & Research vs. Anjani Kumar Goenka & Anr., 2009(40) PTC 393 (Del) (DB) our Hon'ble High Court held that :
"11. Section 12 of the Trade Mark Act, 1999 (equivalent of Section 13 of the Trade Merchandise Marks Act, 1957) contains the subject matter of Suit No. 12/08/01 30 honest concurrent use. The same reads as under :
12.Registration in the case of honest concurrent use, etc. In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trademark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.
12.There are two parts of the doctrine of honest concurrent use. First part is that the adoption must be honest and the second part is that there is concurrent user of the trade mark with another trade mark. There is however a third salient feature on the applicability of this doctrine and which is that conditions and limitations can be imposed by the Registrar of Trade Marks while allowing registration of one or more trade mark which are identical or similar in case there is found a case of honest concurrent user. This third part will also, as will be seen be an important aspect while issuing directions for disposing off the appeal."
27. In Ansul Industries Vs. Shiva Tobacco Company, 2007 (34) PTC 392 (Del.), it was held :
"Honesty of adoption at the initial stage itself has to be established to take benefit of concurrent registration under Section 12(3) of the Act. If the user at Suit No. 12/08/01 31 the inception is dishonest, subsequent concurrent user will not purify the dishonest intention. Commercial honesty at the initial stage of adoption is required. What is protected is innocent use of a mark by two or more persons unknown to each other and unaware of the mark used by the other. Adoption must be honest, bona fide and without any knowledge on the part of the adopter. The onus and burden is on the defendant to show that the user and adoption at the initial stage was honest."
28. The defendants examined Shri Sanjay Kumar Singh as DW1 who adduced evidence by way of affidavit Ex.DW1/A. In para 2 of the affidavit Ex.DW1/A, the DW1 has stated that an application for registration of trademark REVOX dated 23.03.1998 in class 5 was applied and the same is Ex.DW1/2. In para 3 of affidavit Ex.DW1/A, it is stated that the said application No.797488 has matured into a registration and certificate for the registration is Ex.DW1/3. The plaintiff examined Shri R.K. Jain as PW1 who adduced evidence by way of affidavit Ex.PW1/A and in para 7 of affidavit Ex.PW1/A, the PW1 has stated that the plaintiff filed an application for registration of trademark RIVOX in class 5 on 19.11.1999 vide application No.887264 and the said application is Ex.PW1/38. It is to be noted that the plea Suit No. 12/08/01 32 of the defendant No.1 is that trademark REVOX was applied for registration on 03.04.1998 and the defendant No.1 commenced manufacturing of the said drug under the trade mark REVOX in February 1999. However, the plaintiff has pleaded that it applied for registration of trademark RIVOX on 19.11.1999. As per contents of para 7 of affidavit Ex.PW1/A and para 3 & 4 of affidavit Ex.DW1/A, the defendant had applied for registration of trademark REVOX prior to the application for registration filed by the plaintiff. In the circumstances, the plea of the defendant No.1 that they had taken a search report from the Trade Marks Registry and on receipt of clear search report, they adopted this trademark has force. Moreover, in the crossexamination of DW1 no suggestion has been given to the effect that the defendant had not taken a search report prior to filing application for registration of trademark REVOX.
29. Learned counsel for the defendants has contended that the plaintiff has failed to prove that trademark RIVOX has been used by the plaintiff continuously and that there has been substantial sale of the product of the plaintiff under the trademark RIVOX while the defendant No.1 has proved on record the sales figures and the amount spent on the Suit No. 12/08/01 33 promotion of drug REVOX by defendant No.1 and the said product is selling in much more volume as compared to that of plaintiff.
30. In this case an application under Order XXXIX Rules 1 & 2 read with Section 151 CPC being I.A. No.6298/2001 was disposed of by Hon'ble High Court vide order dated 01.04.2003 and in para 7 of the said order the Hon'ble High Court was pleased to observe that coming to the facts of the present case and placing reliance on the material placed on record on its face value, at best the plaintiff can be said to be the owner by prior user of the trademark 'RIVOX' in respect of his antibiotic preparations and its total sales of that product is to the tune of Rs.1,25,000/ over a period of 11 years there being no sales during the period 199196 and there being no promotional material or any expenditure incurred by the plaintiff on advertising etc. In view of aforesaid observations of Hon'ble High Court of Delhi, the plaintiff was required to prove the expenditure incurred on advertising etc, the promotional material and that trade mark RIVOX has been used by plaintiff continuously since its adoption in the year 1990. PW1 Shri R.K. Jain has filed his evidence by way of affidavit Ex.PW1/A and in affidavit Suit No. 12/08/01 34 Ex.PW1/A, the plaintiff has not mentioned about the expenditure which has been incurred by the plaintiff on the advertising etc. The plaintiff has also not filed any promotional material on record in respect of its product under the trademark RIVOX. The PW1 admitted in the crossexamination that they have not filed any pamphlets, circulars or any informative catalogue for use of doctors. The plaintiff has also not stated in affidavit Ex.PW1/A as to what were the total sales of their product under trademark RIVOX from its adoption in the year 1990. PW1 denied suggestion of defendant in crossexamination to the effect that total sales of product RIVOX between 1990 to 2001 was Rs.1,24,332.50. Although, PW1 denied suggestion of defendant in crossexamination that total sales of RIVOX during the period from 1990 to 2001 was only Rs.1,24,332.50, but plaintiff has not proved total sales figures of RIVOX during the said period of 1990 to 2001.
31. In para 6 of Ex.DW1/A, the defendant has stated that they have heavily promoted their product REVOX over the period of last two years and expenditure on the promotion of said product were Rs.76,33,000/ (Rupees seventy six lacs thirty three thousand only) for the period 199000 and Suit No. 12/08/01 35 Rs.53,57,000/ (Rupees fifty three lacs fifty seven thousand only) for the period 200001 and sales figures of the said product for the period 199900 were Rs.2,10,34,302/ (Rupees two crores ten lacs thirty four thousand three hundred & two only) and for the period 200001, the sales figures for the said product were Rs.1,97,90,897/ (Rupees one crore ninety seven lacs ninety thousand eight hundred ninety seven only). DW1 stated in crossexamination that the sales figures shown in para 6 of affidavit Ex.DW1/A for the year 199900 are not in his personal knowledge but they are authenticated by C.A. and he further stated in the crossexamination that there is no report of authentication by C.A. on record, but thereafter DW1 stated that he can produce the same. In the circumstances, if plaintiff was not accepting sales figures of REVOX as mentioned by defendants in para 6 of affidavit Ex.DW1/A in that case it was not open for the plaintiff to have requested the court to direct DW1 to produce the documents which are authenticated by C.A. proving the sales figures of REVOX as mentioned in para 6 of affidavit Ex.DW1/A. However, the plaintiff has not adopted this course. Plaintiff has not placed any material on record to prove that the sales figures of REVOX as mentioned by defendants in para 6 of affidavit Suit No. 12/08/01 36 Ex.DW1/A are not correct.
32. The plea as raised by defendant No.1 is that the plaintiff has not used the trademark RIVOX continuously since its adoption in the year 1990. As discussed above, Hon'ble High Court was also pleased to observe in its order dated 01.04.2003 passed in IA No.6298/2001 that there has been no sales during the period from 19911996 of RIVOX. In para 5 of affidavit Ex.PW1/A, the plaintiff has stated that they have been using trademark RIVOX since the year 1990 continuously, regularly, extensively in relation to pharmaceutical products till date and few invoices since the year 1990 to 2002 are enclosed as Ex.PW1/4 to Ex.PW1/37. Perusal of Ex.PW1/4 to Ex.PW1/37 shows that Ex.PW1/4 to Ex.PW1/13 pertain to the year 1990, Ex.PW1/14 & Ex.PW1/15 pertain to the year 1991, Ex.PW1/16 and Ex.PW1/17 are of the year 1995. The plaintiff has not filed any document on record to prove that there were sales of the product RIVOX during the period from 1992 to 1994. It is to be noted that Ex.PW1/18 to Ex.PW1/22 are invoices in respect of sales of RIVOX during the year 1996 and Ex.PW1/23 and Ex.PW1/24 are the invoices for the year 1997. The plaintiff has not filed any Suit No. 12/08/01 37 document of the sales of RIVOX in year 1998. Ex.PW1/25, Ex.PW1/26 and Ex.PW1/27 are invoices of year 1999 and Ex.PW1/28 to Ex.PW1/31 pertain to the year 2000. Ex.PW1/32 to Ex.PW1/34 are the invoices for the year 2001 and Ex.PW1/35 to Ex.PW1/37 are the invoices for the year 2002. The invoices regarding sales of RIVOX as placed by plaintiff on record do not prove that said product was being used in substantial quantities or in high volume. Moreover, in order to prove the authenticity of said invoices, the plaintiff has not examined any dealer to whom products vide said invoices were sold in order to prove that said dealers had purchased drugs vide said invoices. The plaintiff has also not proved any record of sales tax in order to prove that any amount of taxes on account of sales of RIVOX was being deposited with the sales tax authority. The plaintiff has also not produced its books of accounts maintained in the usual course of business in order to prove that the sales purportedly effected vide invoices Ex.PW1/4 to Ex.PW1/37 were duly reflected in the said books of accounts maintained by the plaintiff in its usual course of business.
33. Learned counsel for the defendant has relied upon Future Logistics Pvt. Ltd. rep. by its Director Mr. S. Edwin Suit No. 12/08/01 38 Rajamohan vs. Future Logistics Solutions Pvt. Ltd., MANU/TN/1255/2009 wherein Hon'ble High Court of Madras observed that:
"11.Mahesh Chandra, J of Delhi High Court in Hindustan Radiators Company v. Hindustan Radiators Limited 1987 PTC 73 has detailed the broad principles governing the infringement of passing off as follows:
a) that plaintiff has been using its trading style and trade mark for quite a long period and continuously whereas the defendant has entered into the said filed only recently,
b) that here has not been much delay in the filing of the suit for inunction by the plaintiff,
c) that the goods of the plaintiff have acquired a distinctiveness and are associated in the mind of the general public as goods of the plaintiff,
d) the nature of activity of the plaintiff and the defendant is same or similar,
e) that the goods of the parties to which the trade mark of the plaintiff is associated are same or similar,
f) that the user of the said trade mark or trade name by the defendant is likely to deceive and cause confusion in the public mind and injury to the business reputation of the plaintiff,
g) that the sphere of activity and the market of consumption of goods of the parties are the same,
h) that the customers of the plaintiff, inter alia, include uneducated, illiterate and wary Suit No. 12/08/01 39 customers who are capable of being deceived or confused or misled.
15. The Supreme Court in Ramdev Food Products (P) Ltd. v. Arvindbhal Rambhal Patel MANU/SC/3725/2006 : 2006 (33)PTC281(SC) has held as follows:
88. In a case of this nature, the test for determination of the dispute would be the same where a cause of action for passing off arises. The deceptively similar test, thus, would be applicable herein.
89. The doctrine of passingoff is a common law remedy whereby a person is prevented from trying to wrongfully utilise the reputation and goodwill of another by trying to deceive the public through "passingoff"
his goods.
90. In Kerly's Law of Trade Marks and Trade Names, supplement pp.42 and 43, para 1602, the concept of passingoff is stated as under:
The law of passingoff can be summarised in one short general proposition that no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number.
Firstly, he must establish a goodwill or reputation attached to the goods or Suit No. 12/08/01 40 services which he supplies in the minds of the purchasing public by association with identifying 'getup' (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services or offered to the public, such that getup is recognised by the public as distinctive, specially of the plaintiff's goods or services.
Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to a belief that the goods or services offered by him are the goods or services of the plaintiff.
Thirdly, he must demonstrate that he suffers or, in a quick time action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or service is the same as the source of those offered by the plaintiff."
34. In view of aforesaid decisions, the plaintiff was required to prove that the product of plaintiff has acquired distinctive character and a man of ordinary prudence is likely to be Suit No. 12/08/01 41 deceived in buying product of defendant No.1 considering it to be product of plaintiff on account of distinctiveness having been acquired by product of plaintiff. But at the same time, the plaintiff is also required to prove that trademark RIVOX has been used by him continuously.
35. In order to prove that the product of the plaintiff i.e. RIVOX has achieved distinctiveness and the product of the defendant i.e. REVOX is likely to cause deception in the minds of the purchaser, the plaintiff has filed on record letters Ex.PW1/43 to Ex.PW1/46, purportedly written by doctors mentioned in said letters to the plaintiff whereby stating that the product of the defendant No.1 REVOX is causing confusion in the minds of said doctors. The contention of learned counsel for the defendants is that in order to prove that the said letters have been written by doctors mentioned therein, the plaintiff has not summoned said doctors. Rather, the defendant No.1 has examined Dr. Virendra Kumar as DW2 on whose purported letter Ex.PW1/44, the plaintiff has relied. DW2 Dr. Virendra Kumar stated in his examinationinchief that letter dated 25.06.2001 Ex.PW1/44 is neither written by him nor it is signed by him. However, he (DW2) stated in cross Suit No. 12/08/01 42 examination that letterhead Ex.PW1/44 appears to be his. DW2 Dr. Virendra Kumar further stated in the cross examination that letter Ex.PW1/44 was not seen by him prior to appearing in the court as a witness. DW2 Dr. Virendra Kumar denied suggestion of the plaintiff in the cross examination to the effect that the letter Ex.PW1/44 was issued from his clinic. DW2 Dr. Virendra Kumar has denied writing letter Ex.PW1/44 on which the plaintiff has placed reliance in order to prove that the product of the defendant is causing confusion in mind of said doctor. Learned counsel for the defendants has contended that the plaintiff has tried to prove its case on the basis of forged documents and on that account the plaintiff is not entitled to any relief. In support his contention, learned counsel for the defendant has relied upon S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 wherein it was held the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. It was further held that courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. Hon'ble Supreme Court was further pleased to hold that a person whose case is based on falsehood, has no right to Suit No. 12/08/01 43 approach the court and he can be summarily thrown out at any stage of the litigation.
36. For succeeding in passing off action, the plaintiff has to prove that he has established a goodwill and reputation of his trade mark RIVOX and there has been misrepresentation by the defendant No.1 to the public leading or likely to lead the public to a belief that the goods offered by defendant No.1 are goods of the plaintiff. In view of aforesaid discussion, it has been held that the plaintiff has failed to prove that the plaintiff has used trademark RIVOX continuously since its adoption in the year 1990 and moreover, the sales of product of defendant No.1 under the trademark REVOX are of much higher volume as compared to that of plaintiff. In the circumstances, it cannot be said that the plaintiff had acquired such a goodwill that the defendant No.1 was prompted to encash on the goodwill of the plaintiff and on that account the defendant No.1 adopted trade mark REVOX in order to encash on the goodwill made by the plaintiff.
37. In Future Logistics Pvt. Ltd. rep. by its Director Mr. S. Edwin Rajamohan vs. Futur Logistics Solutions Pvt. Ltd. Suit No. 12/08/01 44 (supra) it was observed that: "7.The Supreme Court in Dhariwal Industries Limited and Anr. v. M.S.S. Food Products MANU/SC/0160/2005 : 2005(30)PTC233(SC) has observed that the prima facie establishment of prior user goes a long way in enabling the plaintiff to claim an order of injunction in a passing off action. The aforesaid observation does not mean that in all cases of passing off action, the moment the prior use is established, the applicant is entitled to an order of injunction. If there is no continuity of the business of the prior user and the subsequent user has established a reputation and goodwill by doing business leaps and bounds, the prior user may not have an edge over the subsequent user. In other words, a business magnet who adopted a mark first in point of time, having abruptly stopped his business, cannot seek for an order of injunction as against the subsequent user of the trade mark which has built up a reputation and goodwill in the market."
38. Although, the plaintiff is prior adopter of trademark RIVOX but the plaintiff has failed to prove that there was continuity of user of the trademark RIVOX by the plaintiff but on the other hand defendant No.1 has proved that they have established a reputation and goodwill of their product under trademark REVOX and they are selling the product under Suit No. 12/08/01 45 trade mark REVOX in much higher volume as compared to the trade mark RIVOX of plaintiff. In the circumstances, in view of decision of Hon'ble Supreme Court in case Dhariwal Industries Ltd. & Anr. v. M.S.S. Food Products (supra) the plea of the plaintiff that the defendants have violated the plaintiff's trade mark by using REVOX has no force. This issue is accordingly decided in favour of the defendants and against the plaintiff.
Issues No.4 & 5
39. Since both these issues involve common discussion of facts and law, hence, for the sake of brevity both these issues are being taken up together. In findings on Issue No.3 above, it has been held that the plaintiff has not succeeded in proving that the defendants have violated the plaintiff's trade mark by using trademark REVOX. In the circumstances, the plaintiff is not entitle to decree by injunction and damages as claimed. Both these issues are accordingly, decided in favour of the defendants and against the plaintiff. Issue No.6 (Relief)
40. In view of aforesaid discussions and findings on the aforesaid Issues the plaintiff is not entitled to any relief. Suit Suit No. 12/08/01 46 of the plaintiff is dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Announced in the open Court on 8th April, 2010) (HARISH DUDANI) ADDL. DISTRICT JUDGE15 (CENTRAL) : DELHI Suit No. 12/08/01 47