Delhi District Court
Ajay Kumar Sharma vs Vishal Verma And Ors on 29 January, 2025
IN THE COURT OF SH. AJAY PANDEY
DISTRICT JUDGE (COMMERCIAL COURT-10) CENTRAL,
TIS HAZARI COURTS, DELHI
CS Comm 805/2020
Ajay Kumar Sharma
Trading as M/s AMCO Industry
3/242, Suraj Vihar, Laxmi Bai Marg,
Marrie Road, Aligarh-202001,
Uttar Pradesh
Also At :-
3563/4A, Kucha Dayaram Raviraj Market
Chawri Bazar,
Delhi-110006 ..Plaintiff
VERSUS
1. Vishal Verma
Trading as M/s Archit Engineering Works
D-86, Sector-2,
Tala Nagari Industrial Estate,
Ramghat Road, Aligarh - 202001
Uttar Pradesh. Defendant no.1.
2. Konark Metal Products Pvt. Ltd.
85-A Durga Puripatel Nagar,
Aligarh - 202001, Uttar Pradesh. Defendant no.2.
3 Supra Products Pvt Ltd.
C-124, Sector-1,
Tala Nagari Industrial Estate,
Ramghat Road, Aligarh - 202001
Uttar Pradesh. Defendant no.3.
4. Saya Enterprise
3593/4, IInd Floor,
Brij Mohan Market,
Chawri Bazari, Delhi-110006 Defendant no.4.
Digitally signed
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 1 of 43
CS Comm 805/20 PANDEY Date: 2025.01.29
16:18:12 +0530
Date of Institution : 06.03.2020
Date of Arguments : 09.01.2025
Date of Judgment : 29.01.2025
JUDGMENT:-
SUIT FOR PERMANENT INJUNCTION RESTRAINING INFRINGEMENT AND PIRACY OF DESIGN, RENDITION OF ACCOUNTS, DAMAGES ETC.
PLAINT
1. It is inter-alia stated in the plaint that plaintiff is sole proprietor of the proprietorship firm M/s AMCO industry, engaged in the business of manufacturing, distribution, sale, import and trade of finest quality locks and hardwares, baby latch, mortice handle pair, door handle, mortice lock, builders hardware etc. along with allied and cognate goods since the year 1992.
2. It is further stated that for last many years plaintiff's firm is a leading name in Indian lock industry and all products of plaintiff are sold under the well known trademark LOCTEC. Plaintiff has designed unique shape, configuration and novel design of main door lock. Plaintiff applied for registration of said design of lock on 15.07.2017 and the same was registered on 22.07.2017 bearing registration no. 296001 in Class 08-
07.
3. It is further stated that products of plaintiff are the outcome of efforts through research and development Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 2 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:18:25 +0530 and offer best quality as well as customer satisfaction.
4. It is further stated that plaintiff maintains highest standards of manufacture and trade and invest enormous amount of money and efforts on research and development activities and that the plaintiff's products bearing the aforesaid registered design have become distinctive, identified and associated with the plaintiff and plaintiff's LOCTEC brand. The said LOCTEC products with registered design have also acquired vast reputation in market and are highly demanded.
5. It is further stated that plaintiff has vide distribution channel in India and also has distribution branches in U.K. and Australia. Registered design of plaintiff is stated to have acquired secondary significance denoting said products and business of the plaintiff and is stated to be recognized with plaintiff alone. The plaintiff is further stated to have already built up a handsome sale under the said registered design. Turnover of the plaintiff is tabulated in para no.9 of the plaint as follows :-
Financial Year Turnover (in Rs.)
2009-10 93,26,472.00
2010-11 80,48,781.00
2011-12 86,86,872.00
2012-13 98,01,157.00
2013-14 97,57,544.00
2014-15 79,30,007.00
Digitally signed
AJAY by AJAY PANDEY
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Page no. 3 of 43
PANDEY Date: 2025.01.29
CS Comm 805/20 16:18:31 +0530
2015-16 93,47,885.00
2016-17 1,02,92,304.00
2017-18 2,14,25,495.00
2018-19 3,69,46,041.00
6. It is further stated that plaintiff has acquired proprietary rights over his said registered design under statutory as well as common law and the door locks bearing the said registered design have become synonym and distinctive indicium of the plaintiff.
7. It is further stated that plaintiff has been continuously advertising and promoting his products bearing the registered design through different means and modes including print and electronic media, hoardings, display boards, distribution of trade literature, trade novelties etc. The plaintiff is further stated to be promoting and expanding his business through his exclusive website http://locteclocks.com/ and http://www.locteconline.com/. Plaintiff is further stated to be promoting and selling his products to various online portals namely https://indiamart.com/, https://snapedeal.com/, https://justbaazar.com/ etc. and has incurred substantial amount of money on publicity of said products with registered design.
8. It is further stated that in consequence of the above mentioned publicity and advertisement and also having regard to the excel, quality and high standards of plaintiff's manufacture and sale, the shape, size and Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 4 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:18:41 +0530 configuration of the plaintiff's said products have become eye catching and have acquired secondary significance denoting the product's and business of plaintiff. The public and trade associate identify and distinguish the said products bearing the registered design with the plaintiff.
9. It is further stated that the said design of lock is unique, novel shape and is world's safest main door lock. It is further stated that owing to great success and demand of the said main door lock competitors are being tempted to duplicate the product bearing the registered design of plaintiff in order to replicate his success.
10. All the defendants are also stated to be engaged in the trade and business of manufacturing and selling different types of locks, door handles etc. including main door lock and hardware products. It is stated that defendants have copied the registered design of plaintiff and are using the shape, size and configuration of the same commercially and in course of their trade. Defendant no.1 is stated to be engaged in the business of manufacturing, supplying and selling off pirated products bearing registered design of plaintiff under the name and style M/s Archit Engineering Works.
11. It is further stated that as per records retrieved from the website of Ministry of Corporate Affairs, defendant no.2 Konark Metal Products Pvt Ltd is a company incorporated on 03.04.1991 with its registered Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 5 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:18:53 +0530 office at 85-A, Durgapuri, Patel Nagar, Aligarh, Uttar Pradesh 202001 with its Directors Sh. Bhikhari Das Gupta, M/s Usha Rani, Sh. Manoj Varshney and Sh. Arjit Varshney.
12. It is further stated that as per records retrieved from the website of Ministry of Corporate Affairs, defendant no.3 Supra Products Pvt Ltd is a company incorporated on 24.05.2016 with its registered office at C-124, Sector-1, Talanagari, Ramghat Road, Aligarh, Uttar Pradesh 202001 with its Directors Sh. Manoj Kumar Arora, Ms. Neelam Arora and Sh. Vaibhav Arora.
13. It is further stated that to the knowledge of plaintiff, defendant no.4 (wrongly typed as defendant no.3 in first line of para 18 of plaint) M/s Saya Enterprise is operating from 3593/4, Second Floor, Brijmohan Market, Chawri Bazari, Delhi-110006, who is believed to be engaged as a distributor of defendants no.1, 2 and 3 in Delhi and is involved in sale of the infringing and pirated products bearing the registered design of plaintiff in Delhi.
14. It is further stated that to the knowledge of plaintiff, defendant no.1 supplies the pirated products to other defendants. Defendant no.2 and 3 are buying the impugned pirated products for defendant no.1 and after packaging the same under their different trademarks, distributing and selling the pirated products in different parts of the country.
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 6 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:03 +0530
15. It is further stated that defendant no.2 and 3 are distributing and selling impugned pirated products under the trademark KONARK and SPIRA respectively. Both defendants no.2 and 3 are stated to be supplying impugned pirated products to defendant no.4 in Delhi for sale.
16. It is further stated that the plaintiff is not aware of the exact particulars, complete details, constitution of defendants and their inter-se relation. It is stated that defendant be called upon to disclose the same.
17. It is further stated that in the last week of January, 2020 plaintiff encountered the pirated products of defendants bearing plaintiff's registered design in the markets of Delhi. The plaintiff made a test purchase of pirate article i.e. main door lock bearing the plaintiff's registered design from the shop of defendant no.4 located at Chawri Bazar Market, Delhi.
18. It is further stated that defendants have copied in entirety the said registered design of plaintiff and are committing acts of piracy and infringing the copyright in the said registered design. Impugned products and business of the defendants are stated to be of the similar nature and are stated to be sold through the same distribution channel with same consumers. It is also stated that the plaintiff apprehends that the pirated articles with registered design of plaintiff are of inferior quality. A comparison of the product of the plaintiff Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 7 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:13 +0530 bearing the registered design and impugned products of defendants is given in para no.22 of the plaint as follows :-
Plaintiff's product Defendants' impugned bearing the registered product bearing the design infringing design Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Page no. 8 of 43 CS Comm 805/20
19. It is further stated that all the patterns, indentations and grooves which form the essentials of plaintiff's registered design have been copied by the defendants. Impugned design used by the defendants is further stated to be substantial copy of the new novel registered design.
20. It is further stated that the defendants are taking advantage of all financial and human resource invested by plaintiff for creating this new and novel design without incurring any cost themselves and are violating plaintiff's proprietary rights with diluting his copyright in the registered design without leave and license of the plaintiff.
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Page no. 9 of 43 CS Comm 805/20
21. It is further stated that the resemblance between the plaintiff's registered design and the defendant's impugned design is so close that it can hardly occur except by deliberate imitation and sheer piracy. By their impugned adaption and user of the impugned design, defendants are stated to be illegally exploiting valuable rights of plaintiff at his expenditure causing huge losses to plaintiff in business and reputation by selling their low quality products at a price lower than the plaintiff. The losses suffered by plaintiff are stated to be incapable of being assessed in monetary terms and defendants gain are stated to be plaintiff's losses. Defendants are stated to be liable to render their full account to the plaintiff for ascertainment of profits earned by them and are stated to be further liable to pay the same to plaintiff.
22. This court is stated to be having territorial jurisdiction to try and adjudicate the present suit as the defendants reside and carry on business of selling the impugned products in market in Central Delhi at Chawri Bazar, through their dealer/distributors within the territorial limits of this court. Plaintiff is also stated to be having various distributors/dealers engaged in marketing and supplying his products with his said registered design within the territorial jurisdiction of this court. Actual acts of infringement and piracy are stated to be taking place within the jurisdiction of this court.
23. On the above facts stated in the plaint, a decree of Page no. 10 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:22 +0530 permanent injunction restraining the defendants from manufacturing, selling, using, displaying, advertising, importing/exporting, publishing, exposing for sale or by any other manner dealing in all types of locks bearing the impugned design or any other design which is fraudulent and/or obvious imitation to plaintiff's design in relation to article 'main door lock'; for an order for delivery of all the impugned finished and unfinished material of defendant bearing the impugned design including dies, moulds, blocks or any other incriminating material to plaintiff; rendition of accounts of profit earned by defendant and damages of Rs.5,50,000/- on account of damages sustained by plaintiff on account of loss of sale, reputation and goodwill with cost is prayed.
WRITTEN STATEMENT OF DEFENDANTS NO.1 & 2.
24. Defendants no.1 and 2 were served with the summons of suit and filed their joint written statement.
25. In their written statement, defendants no.1 and 2 took preliminary objections that plaintiff has not approached this court with clean hands; that this court has no territorial jurisdiction to try and entertain the present suit; that address of both defendants no.1 and 2 fall within the jurisdiction of District & Sessions Court, Aligarh but plaintiff has deliberately made false averments in the plaint that defendants reside and carry on business in Central Delhi. It is further stated that Digitally signed AJAY by AJAY PANDEY Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. PANDEY Date: 2025.01.29 Page no. 11 of 43 16:19:34 +0530 CS Comm 805/20 plaintiff has not disclosed in which area, within the jurisdiction of this court, goods of defendants no.1 and 2 are being sold. The entire para of plaint regarding point of jurisdiction is stated to be vague and misleading and it is stated that plaintiff has not placed on record any invoices to show that defendants no.1 and 2 are manufacturing or selling the goods within the jurisdiction of this court.
26. It is further stated that plaintiff has wrongly invoked territorial jurisdiction of this court and suit is liable to be returned under order VII rule 10 CPC and that defendants no.1 and 2 had already filed the application under order VII rule 10 and 11 CPC.
27. It is further stated in the preliminary objections that averments regarding cause of action are false and that defendants no.1 and 2 neither have any registered or branch office nor sell any product within the jurisdiction of this court. It is stated that plaintiff ought to have instituted the present suit within the territorial jurisdiction of District Court, Aligarh, UP.
28. It is further stated that plaintiff was duty bound to state whether defendants no.1 and 2 have any registered or branch office within the territorial jurisdiction of this court and was further duty bound to search that products of defendants no.1 and 2 are being sold within the jurisdiction of this court; that there is serious concealment of this material fact for which suit is liable Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 12 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:41 +0530 to be dismissed.
29. It is further stated that defendant no.1 has already filed cancellation petition against the impugned design no.296001 in Class 08-07 on the ground that :-
1) The design was already published in India and in other countries prior to date of registration.
2) That design is not a new or original design.
3) That the design is not registrable under Design Act 2000.
30. The said cancellation proceedings are stated to be pending for adjudication before learned Controller of Design, Kolkatta.
31. It is further stated in preliminary objections that defendant no.1 Mr. Vishal Verma, is proprietor of M/s Archit Engineering Works. Whereas defendant no.2 M/s Konark Metal Products Pvt Ltd is a private limited company with Mr. Bikhari Das Gupta, as one of the Directors of company and its authorized representative, duly authorized in Board meeting dated 25.09.2020. Both these persons i.e. Mr. Vishal Verma and Mr. Bikhari Das Gupta are thus stated to be well conversant with the facts and circumstances of the present case and competent to file, sign, depose and conduct the present suit on behalf of answering defendants.
32. It is further stated that in the year 2008 defendant no.1 Mr. Vishal Verma started proprietorship firm M/s Archit Engineering Works which is engaged in the Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Digitally signed Page no. 13 of 43 CS Comm 805/20 AJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:19:47 +0530 business of manufacturing and selling different type of locks all over India. It is further stated that on 03.04.1991 defendant no.2 company was incorporated under the provisions of Indian Companies Act 1957 and doing its business since then and is engaged in the business of manufacturing and marketing of all kinds of locks. It is further stated that defendant no.1 developed a design of main door lock in the month of April 2017 in India which was already published and used in different countries such as Spain, China and United Kingdom in the year 2016 and started using the said design of main door lock since April 2017 in India.
33. It is further stated that the said design of main door lock has been continuously, extensively and openly being used by defendant no.1 in its business since it is developed in April 2017 without any hindrance from anybody.
34. It is further stated that by passage of time defendants no.1 and 2 have emerged as the leader of lock industries and their products adhere to strict quality control using world class technology. Both the defendants are stated to be best known for their wide range of products in India.
35. It is further stated that defendants no.1 and 2 maintained high standard in the field of manufacturing, marketing and selling of said locks, and because of that, locks sold by them under the trademark KONARK have Page no. 14 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:53 +0530 acquired enviable goodwill and reputation among the consumers, public and members of the trade in local markets of Aligarh and other parts of UP but during Covid-19 pandemic business of defendants no.1 and 2 has been adversely affected.
36. It is further stated that plaintiff and defendants no.1 and 2 are members of association namely Aligarh Hardware & Locks Traders Association (AHLTA) and known to each other since long time and interact with each other in each meeting of Association at Alighar, UP. It is also stated that defendants no.1 and 2 have no relations with defendants no.3 and 4 in any manner whatsoever and plaintiff has malafidely made them as party to invoke jurisdiction of this court. Defendants no.1 and 2 never sold any product in Delhi including Central Delhi.
37. It is further stated that said locks are already available in public domain since 2016 i.e. prior to application for registration of impugned design by plaintiff and that defendant no.1 is original conceiver, adopter and user of impugned design of main door lock in India since April 2017 and has been continuously, extensively and openly using the said main door lock.
38. It is further stated that plaintiff has concealed the above said facts from this court to use and ruin the business of defendants no.1 and 2 and has falsely claimed to be owner of impugned design and Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 15 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:19:59 +0530 fraudulently obtained the registration certificate. It is further stated that plaintiff has no exclusive right and impugned design of lock which is already in public domain even prior to date of application for registration of impugned design by plaintiff and plaintiff cannot claim exclusive proprietorship right over the impugned design. It is further stated that in the facts and circumstances no case for infringement and piracy of design is maintainable as there is no novelty in design no.296001 in Class 08-07 as the impugned design was available in public domain since 2016. The plaintiff has misappropriated the said design to himself which is a exact copy of defendant's product which is manufactured and sold by defendant no.1 since April 2017. It is also stated that impugned design was published in India by numerous sellers including defendants no.1 and 2 but plaintiff fraudulently applied for registration thereof and therefore the said registration is now under cancellation before learned Controller of Designs, Kolkatta. It is further stated in preliminary objections that plaintiff has no case on merits and cannot be a aggrieved party and therefore suit filed by plaintiff is liable to be dismissed.
39. In para-wise reply of plaint, it is denied by defendants no.1 and 2 that plaintiff is carrying on his trade and business in the name and style of M/s AMCO Industry and is duly authorized to institute and file the present suit and to verify the pleadings.
Page no. 16 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:20:05 +0530
40. It is reiterated that plaintiff is claiming exclusive right over a design which is prior published design since 2016. It is denied that plaintiff endeavored to provide better quality with stunning range of locks and hardware to the world and that exclusive product range of plaintiff is the outcome of his non-ending efforts through research & development to offer best quality and customer satisfaction. It is denied that plaintiff's design has unique shape and configuration of main door lock and it is stated that there is no novelty in design no.269001 in Class 08-07 as it was already in public domain since 2016. The plaintiff has misappropriated the said design to itself. It is stated that business of defendant no.1 is spearheaded, managed and pioneered by himself who introduced different types of locks from time to time in the market spending sufficient amount of money, labour, skill, time, energy and expertise. It is also stated that defendant no.1 now enjoys monopoly and exclusivity for its design of locks and quality of his goods/products have acquired a unique identity/reputation/recognition in the market. It is also stated that plaintiff is well aware about the reputation of defendant no.1 and his products and that public at large recognizes goods of defendant no.1 by its peculiar, new, original and novel shape, configuration and surface pattern viz-a-viz said designs since April 2017.
41. It is denied that plaintiff has any distribution Page no. 17 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:20:12 +0530 channel in India and has distribution in UK and Australia and that the said registered design has acquired secondary significance denoting the products of plaintiff alone. It is further denied that plaintiff has already built up a handsome sale under their said design. The details of year wise sales figures given by plaintiff are denied for want of knowledge and it is reiterated that defendants no.1 and 2 are using the said impugned design since April 2017 even prior to the date of application by the plaintiff, as the said impugned design was already in public domain since 2016 and was published in India by numerous sellers including defendants no.1 and 2.
42. It is denied that product of plaintiff bearing the registered design are manufactured under strict quality control in order to meet national and international safety standard as alleged and have become distinctive and associated with plaintiff and plaintiff's LOCTEC brand or that these products are highly demanded in markets and have acquired a vast reputation or that impugned design has become synonymous and distinctive indicium of plaintiff.
43. It is further denied that nobody can be permitted to use or deal with the same/similar design and copyrights therein and it is reiterated that plaintiff fraudulently obtained registration of impugned design as the said design was already published in the year 2016 and defendants no.1 and 2 were selling the said Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 18 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:20:41 +0530 impugned design since April, 2017. Promotion and advertising by the plaintiff as alleged in the plaint is denied. Reputation of the plaintiff as stated in the plaint is also denied. It is denied that plaintiff's products have become eye catching and have acquired secondary significance denoting the products and business of the plaintiff. Averments about plaintiff's lock being in great demand and there is always rush for the said products are denied.
44. It is admitted that defendants are engaged in the trade and business of manufacturing and selling different types of locks. Contents of the preliminary objections are repeated and it is again stated that defendants no.1 and 2 have no business relations with defendants no.3 and 4 of any nature whatsoever. Plaintiff has deliberately made them as party in the suit on the basis of false averments in plaint. It is reiterated that defendants no.1 and 2 never sold any products in any part of Delhi including Central Delhi. Suit filed by the plaintiff is stated to be not maintainable in view of the judgment passed by Hon'ble Supreme Court of India in the case of Indian Performing Right Society Vs Sanjay Dalia & Ors., (2015) 10 SCC
161. No cause of action is stated to have arisen in favour of plaintiff and dismissal of suit is prayed.
PLEADINGS OF DEFENDANTS NO.3 & 4.
45. Despite service of summons upon defendants no.3 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 19 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:20:53 +0530 and 4, neither written statement was filed on their behalf nor anyone appeared for them. Vide order dated 04.09.2021 of my learned predecessor, defendants no.3 and 4 were proceeded ex-parte.
REPLICATION
46. Plaintiff filed replication to the written statement of defendants no.1 and 2 thereby reiterating the facts stated in the plaint and denying contrary allegations of the written statement.
ISSUES
47. Vide order dated 07.10.2022, following issues were framed by my learned predecessor:-
1) Whether this court has no territorial jurisdiction to entertain the present suit, as alleged by the defendant? OPD
2) Whether the plaintiff has no cause of action to file the present suit and the suit deserves dismissal under order 7 rule 11 CPC, as alleged by the defendant? OPD.
3) Whether the plaintiff has concealed the material facts and not approached the court with clean hands, as alleged by the defendant? OPD.
4) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP.
5) Whether the plaintiff is entitled for rendition Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 20 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:21:11 +0530 of accounts, as prayed for? OPP.
6) Whether the plaintiff is entitled for damages and if so, to what amount? OPP.
7) Relief.
EVIDENCE
48. Plaintiff Sh. Ajay Kumar Sharma, examined himself as PW-1 and tendered his affidavit in evidence as Ex.PW1/1. He proved following documents:-
1) Plaint of suit as Ex.PW1/2.
2) Representation of the products of plaintiff
and defendants as Ex.PW1/3.
3) Photocopy of certificate of registration of
design as Ex.PW1/4.
4) GST registration certificate of plaintiff as
Ex.PW1/5.
5) Tax invoice no.810 dated 16.10.2019 as
Ex.PW1/6.
49. PW-2 Sh. Harish Khanna is the owner of firm M/s Saya Enterprises. He brought the carbon copy of Tax invoice no.810 dated 29.01.2020 of Rs.1003, copy of which was already exhibited as Ex.PW1/6.
50. DW-1 Sh. Vishal Verma is the proprietor of M/s Archit Engineering Works. He tendered his affidavit in evidence as Ex.DW1/A. He proved following documents:-
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 21 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:21:20 +0530
1) Ex.DW1/1 (colly.) are screen shots from twitter account of Carrajeros Admifin@AdmifinMadrid.
2) March A are copies of catalogue from https/loktonic.co.uk/product-category/rim-gate-locks.
3) March B are copies of screen shot from the IFAM website http://www.ifam.es/en.
4) Ex.DW1/4 (colly.) are copies of screen shots from the website of EC Hardware Co. Limited.
5) Ex.DW1/5 (colly.) are screen shot of WhatsApp group AHLTA from Whatsapp.
6) Mark C is copy of certificate of Registration and allotment of TIN of defendant no.1 under UPVAT.
7) Ex.DW1/7 (colly.) is GST certificate of defendant no.1 Firm.
8) Ex.DW1/8 is Annual Turnover of the
defendant no.1 Firm.
9) Ex.DW1/9 (colly.) are Income Tax Return
documents of the defendant no.1.
10) Ex.DW1/10 (colly.) are sale invoice of
defendant no.1 Firm.
11) Ex.DW1/11 (colly.) are copies of WhatsApp
chatting in respect to impugned design.
12) Mark D are copies of petition for cancellation of design no.296001.
51. DW-2 Sh. Bhikhari Das Gupta, is the proprietor of M/s Konark Metal Products (P) Ltd. He tendered his Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 22 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:21:28 +0530 affidavit in evidence as Ex.DW2/A. He proved following documents:-
1) Ex.DW2/1 is extract of the Board Meeting of the defendant no.2 company.
2) Ex.DW2/2 (colly.) are copies of certificate of registration and allotment of TIN of defendant no.2 under UPVAT and Sale Tax Registration Certificate of defendant no.2.
3) Ex.DW2/3 (colly.) are GST certificate of defendant no.2 company.
4) Ex.DW2/4 is Turnover of the defendant no.2 company.
5) Ex.DW2/5 is Certificate of Incorporation of defendant no.2.
ARGUMENTS
52. Learned counsels for both the parties addressed their respective oral arguments. Learned counsels for parties have also filed their respective written arguments.
53. Learned Sh. Sanjeev Singh, Advocate appearing for plaintiff argued that defendants have infringed the design of the lock of plaintiff. The plaintiff is selling its lock under the trademark "LOCTEC". It is argued that goodwill of the plaintiff has suffered due to infringement of design by the defendants. The plaintiff has also suffered financial loss due to the said acts of defendants.
54. Per-contra learned Sh. Rakesh Tiwari, Advocate Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 23 of 43 CS Comm 805/20 PANDEY Date:
2025.01.29 16:21:39 +0530 appearing on behalf of defendants no.1 and 2 argued that this court has no territorial jurisdiction to try and entertain the present suit against defendants no.1 and 2 as they both are residents of Aligarh, UP. The plaintiff has made false averments in the plaint to invoke the jurisdiction of this court. He has further argued that plaintiff has filed the present suit in connivance with defendants no.3 and 4 in order to falsely claim territorial jurisdiction of this court and has concealed material facts from the court. The defendants no.1 and 2 never carried on business or worked for gain qua the impugned design of plaintiff, within the jurisdiction of this court.
55. Arguments considered. Record perused.
FINDINGS
56. Issue wise findings of the court are as under :-
Issue no.1 :- Whether this court has no territorial jurisdiction to entertain the present suit, as alleged by the defendant? OPD
57. Onus to prove this issue has been put by my learned predecessor upon the defendants. Plaintiff has specifically alleged in the plaint that cause of action against all the defendants had arisen within the territorial jurisdiction of this court. Defendants no.1 and 2 have denied that any cause of action in their favour has arisen within the jurisdiction of this court. First the plaintiff is supposed to prove his averments regarding arising of Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Digitally signed Page no. 24 of 43 CS Comm 805/20 AJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:21:54 +0530 cause of action within the jurisdiction of this court.
58. Both the learned counsels for parties relied upon section 20 of The Code of Civil Procedure 1908, which provides as follows :-
20. Other suits to be instituted where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
59. A bare reading of the above said provision clarifies that under clause (c) of this provision a suit can can be filed in the local jurisdiction, where whole or part Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 25 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:02 +0530 of cause of action arises against a particular defendant or all defendants.
60. As per clause (a) of section 20 of The Code of Civil Procedure, 1908 a suit can also be filed within the local jurisdiction where the only defendant in the suit, actually and voluntarily resides or carries on business or personally works for gain. Under the same clause, if there are more than one defendant, suit can be filed within the local jurisdiction, where each of such defendants voluntarily resides or carries on business or personally works for gain.
61. Under clause (b) of section 20 of The Code of Civil Procedure, 1908 where there are more than one defendant, suit can be filed within the local jurisdiction where any of such defendant actually and voluntarily resides or carries on business, or personally works for gain. This choice of the plaintiff to sue at place, where either of defendants reside or carries on business is restricted by proviso that either leave of the court is taken by plaintiff in respect of the defendants who do not reside or carry on business in local territory or such defendant outside the territorial jurisdiction of the court has acquiesced in the institution of suit.
62. Hon'ble High Court in the case of MONTESSORI EDUCATION SOCIETY REGD & ORS Vs MS SHAILY GROVER & ORS, CM(M) 350/2023, decided on 03.03.2023, held as follows :-
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 26 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:09 +0530
27. It would be apposite to extract the provisions of Section 20(b) for the purposes of convenience.
"20. Other suits to be instituted where defendants reside or cause of action arises. - Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in 3 [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
A plain reading of sub-Section (b) of Section 20 CPC brings to fore an aspect that the Civil Court is empowered to permit the plaintiff to institute a suit by AJAY PANDEY Page no. 27 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:23 +0530 where one of the many defendants would be residing and the use of the word "or" between sub section (b) and
(c) would itself indicate that the residence of one of the defendants is also to be considered and need not necessarily be dependent upon whether any cause of action to institute a suit against the said defendant would have arisen therein.
28. On the arguments of learned senior counsel on the issue that no application or leave separately was sought by the respondents/plaintiffs is concerned, this Court has considered the contents of para 44 of the plaint wherein the said leave was specifically sought by the respondents/plaintiffs to institute the suit before the said Civil Court.
63. In the present case apparently neither the plaintiff took any leave of the court to institute the suit qua defendants no.1 and 2 within local jurisdiction of this court nor defendants no.1 and 2 ever acquiesced to the institution of the present suit in Delhi. Hence, in the humble opinion of this court, the court has to examine whether defendants no.1 and 2 actually or voluntarily reside within the jurisdiction of this court or carry on their business within such jurisdiction.
64. Averment in the plaint in this regard are specifically denied by defendants no.1 and 2 and it is categorically stated in written statement that defendants Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 28 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:31 +0530 no.1 and 2 neither have any registered or branch office nor they are selling any of their product within the jurisdiction of this court. Plaintiff alleged that defendants no.1 and 2 are selling their products within the jurisdiction of this court through defendants no. 3 and 4. In the written statement defendants no.1 and 2 categorically stated that they have no business relationship with defendants no.3 and 4 and that plaintiff has deliberately and malafidely made them party in the present suit on the basis of false averments to invoke jurisdiction of this court.
65. In the memo of parties address of defendants no.1 and 2 is of Aligarh, UP. There is no averment that either of the defendants no.1 and 2 voluntarily reside within the jurisdiction of this court. The court has to examine on the basis of evidence as to whether the plaintiff has establish that either of defendant no. 1 and 2 carries on business or works for gain within the jurisdiction of this court. Hence, this court has to analyze evidence of the parties to confirm whether the plaintiff has been able to prove that defendants no.1 and 2 had relationship in respect of the impugned design with defendants no.3 and 4 at the time of or before the institution of suit.
66. Learned counsel for plaintiff has heavily relied upon tax invoice no.870 dated 29.01.2020 through which the plaintiff had done alleged test sale of lock with the pirated design of plaintiff.
Page no. 29 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:38 +0530
67. Perusal of Ex.PW1/6 reflects that a cash purchase of Spira Brand Bolt Lock was made through this invoice for a price of Rs.850/- from Saya Enterprises (defendant no.4) on 29.01.2020. Plaintiff has alleged that the said product was supplied by defendants no.1 and 2 to defendant no.4 for sale in Delhi. There is however no documentary or oral testimony in this regard. Invoice Ex.PW1/6 bears branch name of the lock. Same do not bear anything to suggest that the said lock is being manufactured or supplied by defendants no.1 and 2. Defendants no.1 and 2 have denied that any such supply was made by them to defendant no. 3 or 4.
68. Mr. Harish Khanna, owner of defendant no.4 Saya Enterprises was called in the witness box by plaintiff as PW-2. Even he did not state that he had any relationship with defendants no.1 and 2 qua the article/goods sold through invoice no.870 Ex.PW1/6. Rather in his cross-examination he stated "I do not know Vishal Verma and Konark Metal Products Private Limited. Again said, I have just heard their names. I never had any business dealing with Vishal Verma and Konark Metal Products Private Limited. I had purchased the goods as mentioned in my invoice bearing no.870 from defendant no.3 i.e. Supra Products Pvt Ltd.." Hence, testimony of PW-2 is sufficient to reflect that alleged pirated product, sold to plaintiff through Ex.PW1/6 was not supplied by either of defendants no. 1 Digitally signed AJAY Page no. 30 of 43 by AJAY PANDEY Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. PANDEY Date: 2025.01.29 CS Comm 805/20 16:22:46 +0530 and 2. Hence, no cause of action can be said to have arisen in favour of plaintiff against the defendants no.1 and 2 because of the alleged test sale through invoice no.870 dated 29.01.2020 Ex.PW1/6.
69. There is no other document relied upon by learned counsel for plaintiff to show that defendants no.1 and 2 are carrying on business or are personally working for gain within the jurisdiction of this court.
70. During the course of arguments learned Sh.
Sanjeev Singh, Advocate for plaintiff submitted that all manufacturers of Aligargh are supplying their products at Chawri Bazar, Delhi within the jurisdiction of this court and defendants no.1 and 2 are established manufacturers of locks and allied articles, therefore they must be also supplying and selling their products at Chawri Bazar, Delhi through different distributors, sellers or otherwise.
71. This court is of the humble opinion that fundamental facts to create jurisdiction of this court, need to be proved by the plaintiff. This court need not to draw any presumption about selling of the products of defendant no.1 & 2 at Chawri Bazar, Delhi. Selling of a particular product by a particular manufacturer or availability of his distributors/sellers etc. is a matter of fact, which need to be proved positively. The initial burden to prove the facts necessary for institution of the plaint is always upon the plaintiff. Once this initial Page no. 31 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:22:54 +0530 burden is discharged by the plaintiff, then the defendant may be given an opportunity to rebut the facts brought on record by plaintiff. In humble opinion of this court, in the present case no such initial burden has been discharged by plaintiff through documentary evidence. Rather cross-examination of the witnesses of plaintiff is suggestive that the goods purchased through alleged test sale have not been supplied or manufactured by defendants no.1 and 2.
72. Primary burden to prove its case always remain upon the plaintiff.
73. Hon'ble Supreme Court in the case of Rangammal vs Kuppuswami & Anr, AIR 2011 SUPREME COURT 2344, decided on 13th May 2011, held as follows :-
20. Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in the case of Koppula Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Page no. 32 of 43 CS Comm 805/20 Digitally signed AJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:23:00 +0530 Koteshwara Rao vs. Koppula Hemant Rao, 2002 AIHC 4950 (AP).
21. It has been further held by the Supreme Court in the case of State of J & K vs. Hindustan Forest Company, 2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus.
74. In the case of Smt. Kakali Das v. Dr. Ashish Kumar Das (2005) 1 DMC 397, it was held :-
"32. [...] It is the general rule that he who asserts a fact or claim has to prove it. It is called burden of proof. The burden of proof is on him, who asserts it and not on him, who denies. The husband claimed that he had no illicit relationship with any woman. It was not for him to prove that the allegations of the wife are false. It was for the wife to prove such allegations as alleged by her in her pleadings. We reiterate the views expressed by the earlier Division Benches of this Court that the baseless allegations of cruelty by one spouse against the other constitute mental cruelty of the gravest character to warrant divorce.
75. Hence, it is the plaintiff who is supposed to prove his case independently even when there is no rebuttal of facts from the opposite side.
76. Learned counsel for plaintiff then suggested that there is ocular testimony of involvement of defendants Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Digitally signed Page no. 33 of 43 CS Comm 805/20 AJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:23:09 +0530 no.1 and 2 in business at Delhi. In support of his arguments he relied upon part of cross-examination of DW-1 wherein he stated " I know Supra Products Private Limited for around 8-10 years. Vol. I, Ajay Sharma and Manoj Supra are members of the same association, namely Aligarh Lock and Hardware Association. Earlier there was business relation with Manoj Supra, however, recently there is no business relation with him."
77. In the humble opinion of this court even this statement is not sufficient to confer territorial jurisdiction upon this court. It is an admitted fact that defendants no.1 and 2 have family business of manufacturing and supplying locks. Knowing any member of Aligarh Locks & Hardware Association is not uncommon. Court cannot presume that defendants no.1 and 2 would carry on business with each and every member of Aligarh Locks & Hardware Association. Just because the defendants no.1 and 2 had any business relation with defendant no.3 at any point of time, court cannot presume that even at the time of institution of present suit, either of defendants no.1 and 2, had business relations with defendant no.3 qua the impugned design of plaintiff. This fact was required to be positively proved by plaintiff. The defendants no.1 and 2 are apparently residing and carrying on their business at Aligarh. In the humble opinion of this court, plaintiff has Page no. 34 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. by AJAY AJAY CS Comm 805/20 PANDEY PANDEY Date:
2025.01.29 16:23:18 +0530 failed to prove the fact that they carry their business as regards impugned design at Delhi also. By way of their testimony as well as cross-examination of plaintiff's witnesses, both the defendants no.1 and 2 have established by preponderance of probabilities that they do not reside or carry on business or personally work for gain in Delhi. Apparently neither any leave of the court was taken by plaintiff for institution of present suit against defendants no.1 and 2 nor they have acquiesced in such institution. Hence, this court do not have territorial jurisdiction to try and entertain the present suit as against defendants no.1 and 2. So far as, defendants no.3 and 4 are concerned, these defendants have not contested the present suit. No written statement has been filed by either of them. Defendant no.4 while appearing as PW-2 stated that he purchased the goods as mentioned in invoice Ex.PW1/6 from defendant no.3 Supra Products Pvt Ltd. Hence, it can be safely said that this court has jurisdiction to try and entertain the present suit qua defendants no.3 and 4 only. Just because the suit can be entertained against defendants no.3 and 4, court cannot confer jurisdiction qua defendants no.1 and 2 also, as there is no commonality of cause of action against all the defendants. All the defendants are separate entities. Plaintiff has failed to establish that defendants no.1 and 2 are in business dealings with defendants no.3 and 4 with regard to impugned design of plaintiff. Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 35 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:23:27 +0530
78. This issue is accordingly decided partly in favour of plaintiff and partly against the defendants and it is held that this court has no territorial jurisdiction to try and entertain the present suit as against defendants no.1 and 2 in respect of alleged piracy of design by them. This court is however held to have jurisdiction as against defendants no.3 and 4.
Issue no. 2 :- Whether the plaintiff has no cause of action to file the present suit and the suit deserves dismissal under order 7 rule 11 CPC, as alleged by the defendant? OPD.
79. Consequent upon the reasons narrated while deciding issue no.1 and findings thereon, this court is of the opinion that no cause of action has arisen against defendants no.1 and 2 within the jurisdiction of this court. However, there is a cause of action against defendants no.3 and 4. This issue is accordingly partly decided in favour of plaintiff and partly in favour of defendants no.1 and 2.
Issue no. 3 :- Whether the plaintiff has concealed the material facts and not approached the court with clean hands, as alleged by the defendant? OPD.
80. Onus to prove this issue was upon the defendants.
Defendants no.3 and 4 have not contested the suit. Learned counsel for defendants no.1 and 2 submitted Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 36 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:23:37 +0530 that plaintiff has filed the present suit in connivance with defendants no.3 and 4 in order to falsely claim territorial jurisdiction of this court and has concealed material facts that defendants no.1 and 2 never carried on business or worked for gain qua the impugned design of plaintiff, within the jurisdiction of this court.
81. The court has already held that plaintiff has failed to establish that this court has territorial jurisdiction to try and entertain the present suit qua defendants no.1 and
2. However, it cannot be said that just because the plaintiff has failed to positively establish territorial jurisdiction of this court, he has concealed material facts from the court. This court refused to presume the fact that all manufacturers of locks at Aligarh, have their suppliers/distributors at Delhi. Similarly, this court refuses to comment with certainty that defendants no.1 and 2 have no distributor/supplier/business at Delhi. Plaintiff has to incorporate the entire facts within his knowledge in his pleadings. Just because he failed to establish some facts stated in the pleadings, it cannot be said that the opposite party has established the contrary facts or that the plaintiff has concealed material facts or has not approached the court with clean hands. The onus to prove that the plaintiff concealed material fact was upon defendants. It was for the defendants to specify and prove that some facts were within the knowledge of plaintiff, which were intentionally concealed by him. In Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Digitally signed Page no. 37 of 43 CS Comm 805/20 AJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:23:43 +0530 the humble opinion of this court, defendants no.1 and 2 have failed to discharge the onus to prove this issue. This issue is accordingly decided against defendants no.1 and
2. Issue no.4 :- Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP.
82. Onus to prove this issue was upon the plaintiff.
The court while deciding the above issues has already held that this court has no territorial jurisdiction to try and entertain the present suit as against defendants no.1 and 2 in respect of alleged piracy of design by them. The defendants no.3 and 4 have not filed their written statement. As per testimony of plaintiff, it is established on record that plaintiff is the registered owner of design bearing no.296001 in class 08-07. He has proved certificate of registration of design as Ex.PW1/4.
83. The court is in agreement with the submissions of learned Sh. Sanjeev Singh that design of lock used by defendants no.3 and 4 are deceptively similar to the design of the plaintiff. Any member of common public may be deceived with the said design used by defendants no.3 and 4. A common person searching for the design of the plaintiff may also be lead to the design of the defendants no.3 and 4. It is pertinent to mention here that the defendant no.3 and 4 are also dealing in the locks which are similar to the design of plaintiff in the same Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 38 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:23:50 +0530 business and Class. In such circumstances, the defendants no.3 and 4 appear to be causing loss to the plaintiff by infringing his design.
84. Hence, the plaintiff has successfully proved that the defendants no.3 and 4 have infringed the design of lock of the plaintiff. Plaintiff is thus entitled to grant of permanent injunction for restraining the defendants no.3 and 4 from manufacturing, selling, using, displaying, advertising, importing/exporting, publishing, exposing for sale or by any mother or manner dealing in all types of locks bearing the impugned design or any other design which is fraudulent and/or obvious imitation to plaintiff's design in relation to article 'main door lock'; for an order for delivery of all the impugned finished and unfinished material of defendant bearing the impugned design including dies, moulds, blocks or any other incriminating material to plaintiff. This issue is accordingly decided in favour of plaintiff and against the defendants no.3 and 4, however plaintiff failed to produce appropriate evidence regarding this issue as against defendants no.1 and 2. Plaintiff is thus entitled to decree of personal interest as against defendants no.3 and 4 only.
Issue no.5 :- Whether the plaintiff is entitled for rendition of accounts, as prayed for? OPP.
And Page no. 39 of 43 Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY CS Comm 805/20 PANDEY Date: 2025.01.29 16:23:57 +0530 Issue no. 6 :- Whether the plaintiff is entitled for damages and if so, to what amount? OPP.
85. For the purpose of convenience, both these issues are taken together for decision.
86. Onus to prove both these issues was upon the plaintiff. The defendants no.3 and 4 have not filed any written statement and have not rendered any account of profits. Even the plaintiff has not brought on record any evidence to reflect that any particular amount or size of business was lost by plaintiff due to the acts of defendant no.3 and 4 or that the defendants no.3 and 4 have earned any particular amount of profit by using the impugned design of plaintiff. Hence, the relief of rendition of account is liable to be rejected. However, considering that the defendants no.3 and 4 are carrying on business/services using a design deceptively similar to the design of plaintiff, this court is of the opinion that the plaintiff is entitled for damages. Such opinion of the court is in consonance with the judgment of the Hon'ble High Court of Delhi passed on 21.03.2022 in Imaging Marketing Pvt. Ltd. Vs. M/s. Green Accessories through its proprietor and Anr. passed in CS (Comm.) 564/2020, reported in 2022 LiveLaw (Del) 235, wherein Hon'ble High Court held as under:-
12. Since the Defendants have not appeared and rendered any accounts of profits, the said relief as sought in paragraph 30(d) is rejected. Insofar as the relief of Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 40 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:24:11 +0530 delivering up as sought in paragraph 30(e) is concerned, the Plaintiff or a representative thereof, is permitted to visit the premises of Defendant No.1 and Defendant No.6, upon which the Defendant Nos.1 and 6 shall handover all the seized products to the representatives of the Plaintiff for the purpose of destruction.
13. Insofar as the relief of damages as sought in paragraph 30(f) is concerned, it is clear to this Court that the Defendants have blatantly infringed the trademark and logos as also the packaging of the Plaintiff's products. Considering the quantum of counterfeit products which was seized from Defendant No.1 and Defendant No.6, the suit is decreed against the Defendant No.1 for a sum of Rs. 5 lakhs, and against the Defendant No. 6 for a sum of Rs.10 lakhs. Since no products were found in the premises of Defendant No.3, no monetary damages are being imposed on the said Defendant. Let the said amounts be paid to the Plaintiff within two weeks.
87. Plaintiff has valued its suit for damages to Rs.5,50,000/-. Since the plaintiff has failed to prove that defendants no.3 and 4 have earned any specific profit or that the plaintiff has lost any business due to the wrongful use of design of plaintiff by defendant no.3 and 4, this court does not intend to grant any compensatory damages. However, considering the flagrant Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY Digitally signed by AJAY PANDEY Page no. 41 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:24:18 +0530 infringement of the design of plaintiff by the defendants no.3 and 4, plaintiff is held entitled to the damages of Rs.3,00,000/- (Rupees three lakhs only) i.e. Rs.1,50,000/- (Rupees one lakh fifty thousand only) each from the defendants no.3 and 4 for infringement of the design of plaintiff. These issues are accordingly decided.
Relief:-
88. In view of the aforesaid discussion of the court, it is held that this court has no territorial jurisdiction to try and entertain the present suit as against defendants no.1 and 2 in respect of alleged piracy of design by them. Suit of the plaintiff is accordingly dismissed as against defendants no.1 and 2 with liberty to the plaintiff to initiate appropriate action before the Court of Competent Jurisdiction.
89. A decree for permanent injunction is passed against defendants no.3 and 4 restraining both these defendants,their agents, representatives, distributors, dealers etc. from manufacturing, selling, using, displaying, advertising, importing/exporting, publishing, exposing for sale or by any other manner dealing in locks bearing the impugned design or any other design which is fraudulent and/or obvious imitation to plaintiff's design no.296001 in class 08-07 in relation to article 'main door lock'.
90. Suit of the plaintiff is further decreed for delivery Digitally signed Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. AJAY by AJAY PANDEY Page no. 42 of 43 CS Comm 805/20 PANDEY Date: 2025.01.29 16:24:25 +0530 of all the impugned finished and unfinished material of defendants no.3 and 4 bearing the impugned design including dies, moulds, blocks or any other incriminating material to plaintiff.
91. Suit of the plaintiff is further decreed for damages of Rs.3,00,000/- (Rupees three lakhs only) i.e. Rs.1,50,000/- (Rupees one lakh fifty thousand only) each from the defendants no.3 and 4 for infringement of the design of plaintiff.
92. Decree sheet be prepared accordingly.
93. File be consigned to record room.
Announced in the open court on the 29th day of January, 2025.
Digitally signedAJAY by AJAY PANDEY PANDEY Date: 2025.01.29 16:24:33 +0530 (Ajay Pandey) District Judge (Commercial Court-10) Central, Tis Hazari Courts, Delhi.
Sh. Ajay Kumar Sharma Vs Sh. Vishal Verma & Ors. Page no. 43 of 43 CS Comm 805/20