Delhi High Court - Orders
Shoppers Stop Limited vs M/S Shopperstop & Ors on 1 April, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:03.04.2022
13:56:26
$~1(2020)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 424/2020 & I.As. 13118/2021, 4998/2022, 5023/2022,
5081/2022
SHOPPERS STOP LIMITED ..... Plaintiff
Through: Ms. Shubhie Wahi and Ms. Sanya
Kapoor, Advocates. (M:9810907412)
versus
M/S SHOPPERSTOP & ORS. ..... Defendants
Through: Ms. Shweta Sahu and Mr. Brijesh
Ujjainwal, Advocate for D-4.
(M:9987115749)
Mr. P.S. Sundheer, Advocate for D-5
with Mr. Lucky Jain, Manager of
Axis Bank.
Mr. Sandeep Mohopatra, Advocate.
(M:9811472444) for DCP with Mr.
Sampat Upadhyay, DCP, Zone-II,
Indore.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 01.04.2022
1. This hearing has been done through hybrid mode.
2. The present suit seeks permanent injunction restraining Defendant Nos. 1&2, from using the mark 'Shopperstop', stated to be deceptively similar to the Plaintiff's mark 'Shoppersstop', as also reliefs of passing off, dilution, unfair competition, delivery up, rendition of accounts, damages, etc. Vide the previous order dated 8th October, 2020, an interim injunction was granted in the following terms:
"8. Defendant no. 5 shall produce documents and records concerning the bank account no. 920020017692170, maintained with it in the name of CS (COMM) 424/2020 Page 1 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 SHOPPERSTOP. Besides this, the KYC details of the account holder will also be furnished. XXX
14. Accordingly, till the next date of hearing, defendant nos. 1 to 3, are restrained from using the impugned mark or any other mark which is deceptively similar to plaintiffs trademark.
14.1 Furthermore, defendant no. 4 i.e. GoDaddy.com, LLC which is the Domain Name Registrar is directed to suspend/block the following domain name, "shopperstop.co.in"."
3. Defendant No.4/GoDaddy LLP (hereinafter "GoDaddy") was also directed to block the impugned domain name of the Defendants being 'shopperstop.co.in'. Further, Defendant No.5/Axis Bank (hereinafter "Bank") was directed to provide KYC details of a bank account being operated in the name of 'SHOPPER STOP', being bank account No.920020017692170, which was stated to be used by the Defendants to collect monies from gullible persons, believing that it was connected to the Plaintiff's brand.
4. Pursuant to the said orders, certain applications have been filed by the parties, which are listed for hearing today. The same are as below. I.A.5023/2022 (for correction of order)
5. This is an application seeking correction of a clerical error in paragraph 4 of the order dated 16th February, 2022. The impugned domain name in the said paragraph currently reads as "https://shoppersstop.co.in/". The same ought to be read instead as "https://shopperstop.co.in/".
6. The correction is accordingly carried out.
7. Defendant No.4 - GoDaddy is directed to transfer the domain name https://shopperstop.co.in/ to the Plaintiff within one week. The details, CS (COMM) 424/2020 Page 2 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 which are required for the said transfer, shall be provided by the Plaintiff to GoDaddy within two working days.
8. I.A.5023/2022 is disposed of in the above terms.
I.A.4998/22 (for recall of order dated 6th August, 2021)
9. This is an application seeking recall of the order dated 6th August, 2021, by which bailable warrants were issued by this Court in the sum of Rs.15,000/- against the Branch Manager of Axis Bank Limited, i.e., Branch Manager of Axis Bank Limited, H/I Scheme No. 54, Vijay Nagar, Indore - 452010, to be executed through SP of the area concerned in Indore.
10. As is evident from the record, this Court was compelled to pass the said order in view of the complete non-compliance of the order passed by this Court on 8th October, 2020, by which the Bank was directed to produce the KYC documents and records relating to Defendant No.1, who was operating a bank account in the name of 'SHOPPER STOP'. A perusal of the order sheet shows that on various dates being 1st December, 2020, 27th January, 2021, 19th March, 2021, the Bank was repeatedly served with the said order and issued notice through registered post and courier, email as also through ld. Counsel for the Plaintiff. Despite this, the Bank did not disclose the said data or enter appearance leading to the order dated 6th August, 2021. The same reads as under:
"1. Para 8 of order dated 08.10.2020 has not been complied with by the defendant No.5 till date.
2. Accordingly, to ensure the presence of Branch Manager of the defendant No.5 on the next date of hearing, let bailable warrants in the sum of Rs. 15,000/- be issued against the said defendant i.e. Branch Manager of AXIS Bank Limited, H/I Scheme No. 54, Vijay Nagar, Indore - 452010 to be executed through SP area concerned, CS (COMM) 424/2020 Page 3 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 returnable on 31.08.2021.
3. Copy of this order be send to SP, Indore for information and necessary compliance."
11. Thereafter, on the subsequent dates being 31st August, 2021, 7th October, 2021, 20th January, 2022, and 16th February, 2022 also, none appeared for the Bank. This led to issuance of bailable warrants on 16th February 2022 against the SP, Indore for not executing the earlier bailable warrants against the Bank Manager of Axis Bank.
12. Today, the Bank has entered appearance. The present application has been moved by the Bank and is supported by the affidavit of Mr. Lucky Jain, who claims to be the manager of the Axis Bank, Indore. As per the said affidavit, the Bank tenders an unconditional apology for having not complied with the order. Mr. Lucky Jain, Manager of the concerned branch is also present in Court.
13. Mr. Lucky Jain, Manager of the Bank, submits that the documents and the communications which were served upon the Bank were not clear as to what the Bank was expected to do. Hence, though two to three visits were made by him to the Police Station, to enquire as to the further proceedings qua the Court notices. Since there was no clarity from the police officials either, there was an error on part of the Bank in not complying with the order.
14. This Court does not believe that the explanation given by Mr. Lucky Jain justifies the conduct of the Bank in this case, of non-compliance of the orders. However, the requisite KYC details in terms of the order dated 8th October, 2020, along with the bank account statement, have been produced by the Bank in a sealed cover, which has been perused by the Court. The CS (COMM) 424/2020 Page 4 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 said KYC details and bank statement run into 18 pages. As per the account opening form of the Bank, the account under the name 'SHOPPER STOP' was opened by one Shri Akash Bourasi in Indore on 20th July, 2020. The various details of identity cards of the said individual, including the Aadhaar Card, PAN Card and bank statement have been placed on record.
15. Considering the fact that KYC details, etc. have now been submitted, the apology given on behalf of the Bank is accepted. The warrants issued against the Manager of the Bank stand discharged. A warning is given to the Manager to ensure that in future, strict compliance of the orders ought to be undertaken, in right earnest.
16. Let a copy of the entire set of documents be supplied by the Bank to the ld. counsel for the Plaintiff to take steps in accordance with law.
17. Accordingly, I.A. 4998/22 is disposed of.
I.A.5081/2022 (seeking recall of order dated 16th February, 2022)
18. This is an application filed on behalf of Mr. Sampat Upadhayay, DCP, Zone-II, Indore Police, seeking recall of order dated 16th February, 2022. As captured above, vide order dated 6th August, 2021, the SP, Indore Police was directed to serve the Bank, however on subsequent dates being 31st August, 2021 and 7th October, 2021, there was no response from the concerned police officials, despite service by courier/email/WhatsApp/etc. Thereafter, on 16th February, 2022, a letter was received by the Court from the SP, Indore, which did not provide any information as to whether the Bank had been served or not. Accordingly, the said order dated 16th February, 2022 was passed in the circumstances of there being no compliance of the earlier order dated 7th October, 2021. Qua the Police, the following directions were issued vide order dated 16th February, 2022:
CS (COMM) 424/2020 Page 5 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26"8. In view of the abovementioned directions passed by this Court, a letter has been received by Superintendent of Police, Indore wherein it has not been clearly mentioned that the Bailable Warrants in the sum of Rs. 15,000 which were issued against defendant no.5. Branch Manager of AXIS Bank Limited, H/1 Scheme No.54, Vijay Nagar, Indore- 452010 has been executed through SP Indore or not. Despite clear directions, neither Branch Manager of Axis Bank Ltd. is present today nor SP Indore has joined the present proceedings. It seems that there is callousness on the part of SP Indore in complying with the directions passed by this Court.
9. Therefore, Bailable Warrants in the sum of Rs. 15,000/- be issued against the SP Indore, which shall be executed through DGP, Madhya Pradesh for ensuring his presence.
10. Registry is directed to send copy of this order to DGP Madhya Pradesh as well as SP Indore without any delay for compliance."
19. Considering that bailable warrants were issued on 16 th February, 2022, the present application has been filed. As per the said application, an unconditional apology has been submitted by the DCP, Indore and an explanation is sought to be given to the effect that the new Police Commissionerate system was implemented in Indore in December, 2021, instead of the District Police System, which led to shuffling and transfer of police officials. It was due to this fact that the order was served upon the Superintendent of Police, including the fact that there was a change in the nomenclature, that there was some miscommunication.
20. Mr. Sampat Upadhayay, DCP, Zone-II, Indore is present today in Court. He has also tendered an apology for having not executed the warrants against the Bank in time. Mr. Upadhayay further submits that he has been CS (COMM) 424/2020 Page 6 of 7 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 posted in the present post in Indore Police, only in December, 2021. Considering that the Bank has placed on record the requisite bank account holder details, the DCP is given a stern warning to ensure that orders passed by Courts are implemented properly and with diligence in the future. Accordingly, no further action is called for against the said police official. The Court's direction for him to remain present in Court stands discharged, at this stage. However, the Indore Police shall now be represented in these proceedings by Mr. Sandeep Mahapatra, ld. Counsel as there are further directions being issued.
21. The Court has been informed that the bank account of Defendant No.1 has now been frozen. The Indore Police shall now inquire into the whereabouts of Mr. Akash Bourasi and place a status report on record in this regard, within four weeks. The Bank shall furnish all the KYC details and other documents handed over to the Court today to Mr. Upadhayay to enable them to file the status report.
22. I.A.5081/2022 is disposed of.
CS(COMM) 424/2020
23. Ld. counsel for the Plaintiff shall now seek instructions as to whether the Bank should continue to remain as a party in this matter.
24. List the matter for hearing on 2nd August, 2022.
25. The sealed cover submitted by the Bank has been opened and the documents therein be scanned and placed on record.
PRATHIBA M. SINGH, J.
APRIL 1, 2022/dk/rahul/ms CS (COMM) 424/2020 Page 7 of 7