Jharkhand High Court
Chetan Adesara vs Santosh Kumar Verma on 9 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 1004, 2021 (3) AJR 846
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 147 of 2021
1. Chetan Adesara
2. Piyush Adesara
3. Manish Adesara
4. Pasam Adesara ..... Petitioners
Versus
Santosh Kumar Verma ..... Respondent
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners: Mr. Indrajit Sinha
For the Respondent:
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02/09.07.2021 The present C.M.P has been filed for quashing the order dated
17.03.2021 passed by the learned District Judge-I-cum-Presiding officer, Commercial Court, Jamshedpur in Original Suit No. 07 of 2016 whereby the petition filed by the plaintiffs-petitioners under Section 45 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872') has been dismissed and the plaintiffs' evidence has been closed. The petitioners have also prayed for directing the learned Court below to proceed further with the said suit in accordance with law.
2. The factual background of the case, as stated in the C.M.P, is that the petitioners are the business partners of a registered partnership firm, namely, "Chhaganlal Dayaljee" which is carrying on the business of buying, marketing, trading, retailing and selling of jewellery made of gold, silver, diamond, precious metals as well as crystal stones and other items. The said business was started by Late Chhaganlal Dayaljee in the year 1918 and the petitioners are the descendants of said Chhagalal Dayaljee. In order to protect their trademark, the petitioners have also obtained a registered trademark in the name and style of "Chhaganlal" or "Chhaganlal Dayaljee". They have also developed a logo which is used in the bills, packaging materials and is prominently displayed on the display board. In February, 2015, the petitioners came to know that the defendant-respondent opened a shop in the name and style of "Chhaganlal Gopalji" and "Chhaganlal Madanlal & Sons" using the trademark of the petitioners. Thereafter, the petitioners instituted a suit being Original Suit No. 07 2 of 2016 under Section 134 of the Trademarks Act, 1999 (hereinafter referred to as 'the Act, 1999') against the respondent seeking the following reliefs:
"(a) A decree of permanent injunction restraining the defendant, his men, agents, employees, servant and dealers from infringing the plaintiffs' registered trademark by reproducing it or any substantial part thereof in any material from in any manner whatsoever;
(b) A decree of perpetual injunction restraining the defendant, his men, agents, employees, servants and dealers from using the logo and/or from passing off his business and/or products as that of the plaintiffs;
(c) A decree of perpetual injunction restraining the defendant, his men, agents, employees, servants and dealers from using the said logo thereby committing an act of infringement of copyright of the plaintiffs artistic work;
(d) Delivery up and destruction of all packets having the plaintiffs' registered trademark including wrappers, letterhead and other materials bearing the mark "CHHAGANLAL" or "CHHAGANLAL DAYALJEE" and/or any other trademark identical and/or deceptively similar to that of the plaintiffs;
(e) A decree of permanent injunction restraining the defendant, his men, agents, servants, distributors, retailers, dealers, assigns or any one of them claiming under or through it in any manner infringing the plaintiffs' trademark "CHHAGANLAL" or "CHHAGANLAL DAYALJEE" by use of identical/deceptively similar trademark or any identical or similar mark to the plaintiffs' registered trademark;
(f) A decree of a permanent injunction restraining the defendant, his men, agents, servants or any one of them claiming under or through it in any manner from passing off his business as that of the plaintiffs by use of the mark "CHHAGANLAL" or "CHHAGANLAL DAYALJEE" and/or any other mark deceptively and/or identically similar thereto;
(g) Enquiry into loss and damage and decree upon such
sum as may be found due and payable;
(h) Receiver;
(i) Injunction;
(j) Costs;
(k) Further and/or relief."
3. During the pendency of the said suit, the petitioners filed a petition dated 16.09.2016 under Order XXXIX Rules 1, 2 & 7 read with Section 151 of the CPC seeking temporary injunction restraining the respondent from infringing the petitioners' registered trademark. However, the said petition was dismissed by the learned Presiding officer, Commercial Court, Jamshedpur vide order dated 17.04.2017. Thereafter, the petitioners preferred appeal against the said order 3 being Commercial Appeal No. 4 of 2019 before this Court, which was also dismissed vide order dated 05.02.2020. Thereafter, the petitioners preferred appeal being S.L.A. (Civil) No. (S) 9343 of 2020 before the Hon'ble Supreme Court, which was also dismissed vide order dated 11.01.2021 directing the learned Commercial Court to decide the said suit preferably within a period of six months from the date of the order of the Hon'ble Supreme Court. The petitioners adduced altogether six witnesses to substantiate the issues framed by the learned Court below. P.W.6 (Yusuf Mohammad) has stated in his examination-in-chief that the respondent had sold a silver coin on 19.12.2015 to him representing himself as a branch of "Chhaganlal Dayaljee Jewellers" which was run by the petitioners. The said silver coin was exhibited on admission by the said witness (P.W.6) and was marked as Ext. 1M. Thereafter, the petitioners filed a petition dated 17.03.2021 under Section 45 of the Act, 1872 praying therein to send the silver coin exhibited by the P.W.6 to a licensed hall-marker to determine the ingredients and quality of the same. However, the said petition was dismissed by the learned Court below vide the impugned order dated 17.03.2021. Hence, the present C.M.P.
4. Learned counsel for the petitioners submits that the respondent is also using the same logo and colour combination which is being used by the petitioners. He is thus passing off the trademark of the petitioners infringing the provisions of the Act, 1999 and taking undue advantage of the same. It is further submitted that though there have been amendments in the CPC for facilitating early disposal of the commercial suits, yet the said amended procedures have not been strictly followed in the said suit. The learned Court below has however erroneously dismissed the petitioners' petition dated 17.03.2021 in view of such amended procedures. The petitioners had also prayed for issuing Dasti summons to the expert, who carries on the business within the local limits of the Court below. Had the learned Court below allowed the petition dated 17.03.2021 and issued the Dasti summons, the same could have been served on the expert on the very next date. It is also submitted that 4 it does not take more than 30 to 45 minutes in conducting assay test and therefore the expert could have submitted his report before the next date fixed in the said suit. The learned Court below has failed to appreciate that the report of the expert was essential for adjudicating the issue with regard to passing off the trade mark. The learned Court below has also failed to appreciate the settled law that one of the requirements for infringing and passing off the trademark is to ascertain as to whether the defendant has been passing off his inferior goods to unknowing customers as good of the petitioners and thereby causing loss of goodwill as well as damage to the petitioners. It is further submitted that in order to ascertain the fact that the defendant was selling an inferior quality of goods, the same should have been sent to an expert for his opinion. The learned Court below has erroneously dismissed the petition dated 17.03.2021 only on the ground that the Hon'ble Supreme Court had directed to decide the suit within a period of six months. It is also submitted that the right of the plaintiffs to adduce evidence and seek expert opinion on the issue touching the merit of the suit cannot be defeated, particularly, when they have been co-operating the learned Court below for early disposal of the suit.
5. Heard learned counsel for the petitioners and perused the relevant materials available on record as well as the impugned order dated 17.03.2021. The learned Court below while passing the impugned order dated 17.03.2021, has taken into consideration the Schedule of the Commercial Courts Act, 2015 (hereinafter referred to as 'the Act, 2015') as well as different provisions of Order XV-A of the CPC and has observed that the Commercial Court has to dispose of the matter expeditiously. Learned Court below has also observed that from the very beginning, the plaintiffs themselves were putting hindrances in quick disposal of the commercial dispute and thus they were defeating the very objective of the said commercial proceeding. The petition under Section 45 of the Act, 1872 was filed only to delay the disposal of the commercial proceeding which would frustrate the basic objective of the Act, 2015. The petitioners had filed several petitions and had also made oral submissions for adjournment of 5 the case on one pretext or other with a view to delay the disposal of the case. The learned Court below has also observed that the defendant had denied the claim of the P.W.6 that he had sold the said silver coin to him. It has also been observed that as per the direction of the Hon'ble Supreme Court, the suit was to be disposed of till 11.07.2021 and hence, vide order dated 10.03.2021, the last chance for adducing evidence was given to the plaintiffs till 17.03.2021. However, they failed to adduce evidence and filed a petition under Section 45 of the Act, 1872. The learned Court below has also observed that the petition dated 17.03.2021 was filed by the plaintiffs as a delaying tactics to linger the disposal of the suit and accordingly dismissed the same with exemplary cost of Rs.5,000/- and their evidence was closed.
6. I have perused different provisions of Order XV-A of the CPC which provide that the Commercial Courts have to decide the case expeditiously and no unnecessary adjournment has to be allowed. Under Order XV-A, Rule 3 of the CPC, it has been provided that in fixing dates or setting time-limits for the purposes of Rule 2 of this order, the Court shall ensure that the arguments are closed not later than six months from the date of the first case management hearing. It has further been provided in Rule 5 of the said Order that in a case management hearings during a trial, the Court may issue appropriate orders so as to ensure adherence by the parties to the dates fixed under Rule 2 and facilitate speedy disposal of the suit.
7. On perusal of the order dated 10.03.2021, it transpires that the next date was fixed on 17.03.2021 for producing evidence on behalf of the plaintiffs. However, on 17.03.2021, the plaintiffs did not produce evidence, rather a petition was filed under Section 45 of the Act, 1872 which was dismissed by the learned Court below observing that the same was filed just to delay the disposal of the case and the evidence of the plaintiffs was also closed. Moreover, the said suit was filed by the petitioners alleging infringement of their registered trademark by the respondent. No useful purpose will be served on conducting expert examination of the silver coin exhibited by the P.W.6 to check the 6 ingredients and quality of the same. Even if it is assumed that the said coin does not conform to the standard of the Victorian silver coin, then also the same would not be of much relevance for deciding the issue as to whether the respondent is infringing the registered trademark of the petitioners.
8. To answer the said question, the Court has to decide as to whether the business of the respondent in the name and style of "Lal Chhagan Gopaljee as well as Chhaganlal Madanlal & Sons Jewellers" is identical or deceptively similar to the trademark of the petitioners i.e. "Chhaganlal Dayaljee" and the respondent has infringed the trademark of the petitioners by using the same.
9. Moreover, the Hon'ble Supreme Court while dismissing S.L.A. (C) No. (S) 9343 of 2020 filed by the petitioners, has observed as follows:
"Mr. Abhijeet Sinha, learned counsel for the petitioner, submits that the suit is at a stage of recording evidence. We direct the trial court to decide the suit, preferably within a period of six months from today."
10. In view of the aforesaid time limit fixed by the Hon'ble Supreme Court, the Trial Court has rightly dismissed the plaintiffs' petition filed under Section 45 of the Act, 1872 on the last date of adducing evidence by them that too, when expert examination of the silver coin exhibited by the P.W.6 was not of much relevance for determination of the issue involved in the suit.
11. In view of the aforesaid reasons, I find no infirmity in the impugned order dated 17.03.2021 passed by the learned District Judge-I-cum-Presiding Officer, Commercial Court, Jamshedpur in Original Suit No. 07 of 2016.
12. The preset C.M.P being devoid of merit is accordingly dismissed.
Satish/A.F.R (RAJESH SHANKAR, J)