Delhi District Court
M/S Dev Pharmacy Pvt Ltd vs Kishore Kumar Sadhwani on 12 October, 2023
IN THE COURT OF SH. REETESH SINGH, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-000980-2021
CS (Comm) No. 50/2021
In the matter of :-
M/s Dev Pharmacy Pvt. Ltd.
E-17A, Sector -8, Noida,
Uttar Pradesh-201301 ............Plaintiff
(Through Ld. Counsel Sh. Vibhor Sethi)
Versus
Mr. Kishor Kumar Sandhwani
Trading as;
M/s Shri Paramhans Ayurvedic Agencies
Opp. Manucha Girls Degreee College,
Kandhari Bazar, Rijab Ganj,
Ayodhaya, Faizabad-Uttar Pradesh-2204001
--------Defendant
(Defendant is ex-parte)
Date of institution of the case : 16.12.2020
Date of final arguments : 04.10.2023
Date of judgment : 12.10.2023
EX-PARTE JUDGMENT
1.The plaintiff M/s Dev Pharmacy Private Limited has filed this suit against Mr. Kishor Kumar Sandhwani Trading as M/s Shri Paramhans Ayurvedic Agencies praying for the following reliefs:-
• Decree for permanent injunction to restrain the defendant from using the impugned trademark / label / packaging / trade dress or any other word /mark/label which may be identical with or deceptively similar to the plaintiff's trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE in relation to their impugned goods and business of pharmaceuticals and medicinal preparations and doing any other acts amounting to or likely to infringe the registered trademarks of the plaintiff PAURUSH JIWAN, PERFECT and PERFECT CAPSULE;CS (Comm) No.50/2021 1
• Decree for permanent injunction to restrain the the defendant from passing off their goods by using the Mark of the plaintiff PAURUSH JIWAN, PERFECT and PERFECT CAPSULE or any other Mark identical or deceptively similar to the plaintiff's Mark PAURUSH JIWAN, PERFECT and PERFECT CAPSULE ;
• Decree for permanent injunction to restrain the defendant from infringing the copyright of the plaintiff in its trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE ;
• Decree to restrain the defendant from disposing of their assets and their stocks in trade as may be brought to the notice of the court during the course of the proceedings;
• An order for delivery by the defendant to the plaintiff all the offending goods bearing the impugned trademark/artistic work including packaging materials, advertising materials, etc. for the purposes of destruction or erasure;
• An order for rendition of accounts of the defendant of business on account of sale of infringing goods by the defendant; and • Costs of the suit.
2. The plaintiff has averred that it is engaged in the business of manufacture and marketing of Ayurvedic Medicinal and Pharmaceutical Preparations under its distinctive trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE. Plaintiff has averred that it is the Proprietor of the said trademark / label / packaging / trade dress in relation to its business. Plaintiff has in para 1 of the plaint depicted the representation of its trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE. It is averred that the Mark PAURUSH JIWAN was adopted by Dr. N. G. Dev in the year 1990 and the Marks PERFECT and PERFECT CAPSULE were conceived and adopted in the year 1995 under the trade name and style of M/s Dev Pharmacy.
3. It is averred that in the year 2000, Dr. N. G. Dev ceased working with his trade name M/s Dev Pharmacy and transferred all his rights in the said marks to the plaintiff company along with copy right and goodwill vide deed CS (Comm) No.50/2021 2 of assignment dated 24.04.2006. In para 4 of the plaint, the plaintiff has tabulated the details of its eight registrations of the marks PAURUSH JIWAN, PERFECT and PERFECT CAPSULE with the Registrar of Trade Marks under different classes. It is averred that the products of the plaintiff are packed and offered for sale in capsules with distinctive packaging with unique colour scheme, design, get up and layout. The packaging box consists of black, green and golden colour represented in a special manner. The packaging of the plaintiff's products is original art work of which the plaintiff has copyright vide registration no. A-161022/2013. It is averred that the plaintiff's mark have become distinctive and associated with the business of the plaintiff on account of its long, continuous, extensive and exclusive user since the years 1990 and 1995 respectively. They have acquired vast reputation and goodwill amongst the public and numbers of the trade. Plaintiff has placed on record its year wise sales figures along with the plaint. Products of the plaintiff are displayed on the website of the plaintiff www.devpharmacy.in on which thousands of people look for products of the plaintiff. Plaintiff has averred that the products of the plaintiff are advertised in leading newspapers, trade magazines, trade literature etc.
4. Plaintiff has averred that the defendant is indulging in work of same/similar/allied/cognate goods as that of the plaintiff. It is averred that the defendant has started using the marks of the plaintiff PAURUSH JIWAN, PERFECT and PERFECT CAPSULE with identical/deceptively similar packaging material. The plaintiff has depicted in para 20 of the plaint the impugned mark and packaging adopted by the defendant in respect of the same categories of products. It is averred that the defendant is indulging in counterfeiting the products of the plaintiff in complete violation of the common law and statutory rights of the plaintiff.
5. It is averred that the defendant has illegally used the same in relation to their goods and business which are identical with and similar to the plaintiff's CS (Comm) No.50/2021 3 marks in each respect including phonetic, visual, structural and all its essential features. The modus operandi of the defendant is manufacturing and selling inferior quality Ayurvedic products which are replica of the plaintiff's products. The defendant is fully aware of the plaintiff's rights, goodwill and reputation in the market and has illegally adopted the marks of the plaintiff to pass off its products as that of the plaintiff. In this manner, the trade mark of the plaintiff is being diluted and eclipsed. It is averred that a common man not knowing the relationship of the parties to this suit is bound to be confused by the illegal adoption of the defendant of the marks of the plaintiff. A common person is easily misled into believing that the products of the defendant are those of the plaintiff. In para 29 of the plaint, the plaintiff has depicted the product of the plaintiff with its mark PAURUSH JIWAN along with the impugned products of the defendant.
6. It is averred that the defendant is commercially using the impugned marks in the course of trade in relation to its goods. The plaintiff has averred that in the third week of January 2021 it came across the impugned goods of the defendant with the marks of the plaintiff. Market inquiry revealed that the defendant had just started using the said mark in relation to its goods. It is stated that the defendant was making clandestine and surreptitious sales with the impugned marks in the markets of Delhi including Shahdara, Vivek Vihar, Anand Vihar, etc. which is within the jurisdiction of this court. The products of the plaintiff are also sold in the jurisdiction of this court and are available OnLine through interactive website of the plaintiff www.devpharmacy.in and its products are also available OnLine on www.flipkart.com and www.amazon.in which can be accessed and operated from all over the country including District Shahdara, Delhi.
7. In these facts and circumstances, the plaintiff filed the present suit in January 2021 along with applications under Order XXXIX Rules 1 and 2 of the CPC and under Order XXVI Rule 9 of the CPC. By order dated CS (Comm) No.50/2021 4 30.01.2021 summons of the suit were issued to the defendant. By the said order ex-parte injunction was granted in favour of the plaintiff restraining the defendant from infringing the registered marks of the plaintiff; passing off their goods and business as that of the plaintiff and from infringing the copyright of the plaintiff in its said marks. Further, a Local Commissioner Sh. Ranjeet Kumar, Advocate was appointed with direction to visit the premises of the defendant to seize the infringing goods and material and to take the same in custody; seize the accounts books, ledger, etc of the defendant; and to serve summons of the suit and notice of the applications upon the defendant.
8. The commission was carried out by the Ld. Local Commissioner who placed on record his report dt. 22.02.2021. In the same, Ld. Local Commissioner has recorded that he carried out the commission on 10.02.2021 and found the defendant Sh. Kishor Kumar Sandhwani proprietor of M/s Sh. Paramhans Ayurvedic Agencies at the premises. He was informed of the order dated 30.01.2021. During the commission Ld. Local Commissioner has found 142 boxes of PAURUSH JIWAN with each box containing 6 strips of 10 capsules each, total being 8,520 capsules similar to that of the trade mark of the plaintiff. The Ld. Local Commissioner seized the counterfeit products and handed over the same to the Counsel for the plaintiff Sh. P. K. Jana. The report of the Ld. Local Commissioner is on the record.
9. On 15.03.2021, the defendant through his Ld. Counsel Sh. Mohit K. Daraad Ld. filed written statement and reply to the application under Oder 39 Rules 1 and 2 CPC. On 18.01.2022, none appeared on behalf of defendant and Ld. Predecessor of this Court has recorded that the written statement was not accompanied with statement of truth, written statement was not signed on each page, the verification was not attested and no affidavit of admission and denial of documents had been filed. On 26.02.2022 also none appeared on behalf of defendant. No steps were taken by the defendant to rectify the CS (Comm) No.50/2021 5 defects pointed out in the order dt. 18.01.2022. Defendant was therefore proceeded ex-parte by order dt. 26.02.2022.
10. The plaintiff led evidence and examined Sh. Sanjay Kumar Jha as PW- 1 who deposed by way of his affidavit Ex.PW-1/A. He placed reliance on the following documents:-
(a) Representation of plaintiff trademark/label of the plaintiff vide Ex.PW-1/1 (OSR).
(b) Representation sheet of impugned Trademark/label of the Defendant vide Ex.PW-1/2 (OSR).
(c) Screenshot of the webpage/URL/weblink of the plaintiff displaying/soliciting trademark/label "Paurush Jiwan & Perfect"
vide Ex.PW-1/3.
(d) Copy of the Legal Proceedings Certificate alongwith Trademark Registration Certificates and status report of the Registered trademark of the plaintiff vide Ex.PW-1/4 (OSR,Colly).
(e) Copy of NOC Copyright Certificates of plaintiff in respect of trademark vide mark Ex.PW-1/5.
(f) Copy of Drug License of the plaintiff vide Ex.PW-1/6 (OSR, Colly).
(g) Copies of the sale figure of the plaintiff vide Ex.PW-1/7 (OSR).
(h) Copy of Invoices/Sales Bills vide Ex.PW-1/8 (Colly, running into nine pages).
(i) Copy of Article and Memorandum of Association vide Ex.PW-
1/9 (OSR, colly running into 24 pages).
(j) Copy of Board of Resolution dt. 13.11.2020 in favour of Sh.
Rabindra Kumar Biswas vide Mark PW-1/10.
(k) Copy of Death Certificate of Sh. Rabindra Kumar Biswas vide Mark PW-1/11.
(l) Copy of Board of Resolution dated 12.10.2021 in favour of Sh.
Sanjay Kumar Jha vide Ex.PW-1/12 (OSR).
(m) Copy of Report of Local Commissioner Sh. Ranjeet Kumar vide Mark PW-1/13 (colly running into 23 pages).
11. As the defendant was ex-parte, PW-1 was not subjected to any cross- examination. The plaintiff therefore closed his evidence.
12. Arguments were addressed on the suit by Sh. Vibhor Sethi, Ld. Counsel for the plaintiff who submitted that the averments of the plaintiff in the plaint and evidence led had gone unrebutted and unchallenged. He submitted that CS (Comm) No.50/2021 6 previously Ld. Predecessor of this court had raised queries regarding territorial jurisdiction of this court to entertain the plaint. He submitted that although the defendant had filed a written statement, the same was without a statement of truth, affidavit of admission and denial of documents and the written statement was not signed on each page. He submitted that despite grant of opportunity, the defendant did not rectify the said defects and by virtue of the provisions of Order 6 Rule 15A (4) and (5), the written statement of the defendant stood struck off from the record. As such there is no written statement on the record. He submitted that as the defendant failed to defend the suit and was proceeded ex-parte, there is no objection on the record with respect to this court not having territorial jurisdiction to entertain the suit. He relied on Section 21 (1) of the CPC and contended that where such objection has not been raised at the earliest opportunity before the court of first instance, and in all cases where issues are settled, on or before such settlement, no such objection can be raised subsequently. He relied on the judgments of the Hon'ble Supreme Court in the cases of Sneh Lata Goel Vs. Pushplata AIR 2019 SC 824, Hira Lal Vs. Kalinath MANU/SC/0041/1961 and Harshad Chiman Lal Modi Vs. DLF Universal Ltd. MANU/SC/0710/2005. He further submitted that even otherwise the defendant has not denied the averments of the plaintiff regarding availability of the products of the plaintiff in the markets within Shahdara District.
13. I have heard the Ld. Counsel for the plaintiff and have perused the record of the case.
14. The written statement of the defendant was filed on 15.03.2021. It was not accompanied with statement of truth, affidavit of admission and denial of documents and the written statement was not signed on each page. Order VI Rule 15A was introduced in the CPC for commercial cases vide the Commercial Courts Act 2015. Order VI Rule 15A (1) provides that every pleading in a commercial dispute shall be verified by an affidavit in the CS (Comm) No.50/2021 7 manner and form prescribed in the appendix to the Schedule. Appendix-I contains the format of Statement of Truth which is required to be filed with pleadings. Clause 6 of the format requires a party to sign on each page of pleadings. Order VI Rule 15A (4) provides that where a pleading is not verified in the manner provided under Sub Rule 1, the parties shall not be permitted to rely on such pleading as evidence or any of the matters set out therein. Order VI Rule 15A (5) further provides that the Court may strike out a pleading not verified by a Statement of Truth.
15. Despite grant of opportunities vide orders dt. 18.01.2022 and 26.02.2022, the defendant did not take any steps to comply with the provisions of Order VI Rule 15A of the CPC. Accordingly, in view of the provisions of Order VI Rule 15A (4) and (5), the written statement of the defendant is treated as non-est.
16. I may also note that under Order XI Rule 4 of the CPC, a party is obliged to file an affidavit of admission and denial of documents of the opposite party and where such affidavit is not filed, the Court may dispense with further proof of such documents. The defendant has not filed any affidavit of admission and denial of documents of the plaintiff and as such, further proof of such documents are dispensed with.
17. As no written statement of the defendant is on record and the defendant did not defend the matter, the averments of the plaintiff and evidence led have gone unrebutted and unchallenged.
18. As far as territorial jurisdiction of this court to entertain the plaint is concerned, the plaintiff has averred that the impugned goods of the defendant are available in the markets in Shahdara District. Written statement of the defendant being defective is non-est. The averments of the plaintiff have, therefore, gone unrebutted. There is no objection on the record of the defendant on the territorial jurisdiction of this court to entertain the plaint. In view of the provisions of Section 21 (1) of the CPC and the observations of CS (Comm) No.50/2021 8 the Hon'ble Supreme Court in the cases of Sneh Lata Goel Vs. Pushplata, Hira Lal Vs. Kalinath and Harshad Chiman Lal Modi Vs. DLF Universal Ltd. (supra), there is no impediment for this court to entertain the plaint.
19. Ex.PW-1/4 (Colly) are the documents of the plaintiff pertaining to the registrations and certificates of its trade marks. The sales figures of the plaintiff Ex.PW-1/7 reflect sales figures of Rs. 33,54,15,693/- for the year 2019-2020. The sales invoices of the plaintiff are Ex.PW-1/8 (Colly). Even though the copy of copyright certificate of the plaintiff was not exhibited and was only marked as Mark PW-1/5, as no affidavit of admission/denial of documents was filed by the defendant, the said document is admitted in evidence.
20. The plaintiff has registrations of the marks PAURUSH JIWAN, PERFECT, PERFECT CAPSULE in its favour. It has copyright of the label PAURUSH JIWAN. The marks of the plaintiff are depicted in the plaint vide Ex. PW-1/1 as under:-
CS (Comm) No.50/2021 921. The impugned marks adopted by the defendant are depicted in the plaint vide Ex. PW-1/2 as under:-
22. In the case of Parle Products (P) Ltd. J.P. and Co., Mysore AIR 1972 SC1359 the Hon'ble Supreme Court has held that in order to arrive at the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. It would be enough if the offending mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In the case of Laxmikant V. Patel vs. Chetanbhai Shah (2002) 3 Supreme Court Cases 65 the Hon'ble Supreme Court was pleased to hold that the law does not permit anyone to carry on its business CS (Comm) No.50/2021 10 in such a way as would persuade customers or clients in believing that the goods or the services belonging to someone else are his or associated therewith. Whether the person who adopts the offending marks has done so fraudulently or otherwise is not material. It was held that honesty and fair play are the basic policies in the world of business. When a person adopts a name in connection with his business or services which already belongs to someone else, it results in confusion and has the propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury. Similarly in the case of Midas Hygiene Industries (P) Ltd. & Anr. vs. Sudhir Bhatia & Ors. (2004) 3 Supreme Court Cases 90 the Hon'ble Supreme Court has held that in cases of infringement either of trade mark or of copyright, normally an injunction must follow.
23. Perusal of the impugned Mark/device/artistic work of the defendant reveals that the same is deceptively similar if not identical to that of the plaintiff. The impugned Mark/device of the defendant is also phonetically similar to the the Mark/device of the plaintiff. The defendant is in the same line of business as of the plaintiff in respect of Ayurvedic Medicinal Products. The plaintiff is thus entitled to grant of the injunctions/ reliefs as prayed for in paras 41 (a) (i), 41 (a) (ii) and 41 (a) (iii) of the plaint.
24. Relief 41 (b) is for a decree to restrain the defendant from disposing of their assets and their stocks in trade as may be brought to the notice of the court during the course of the proceedings. In this regard the plaintiff has not produced any such evidence during the course of proceedings of this suit. Hence, relief 41 (b) is declined.
25. Relief 41 (c) is for an order for delivery by the defendant to the plaintiff of all the offending goods bearing the impugned trademark/artistic work including packaging materials, advertising materials, etc. for the purposes of destruction or erasure. The Ld. Local Commissioner appointed vide order dated 30.01.2021 under Order XXVI Rule 9 of the CPC carried out the CS (Comm) No.50/2021 11 commission and submitted his report on the record. As per the same the Ld. Local Commissioner had seized 142 boxes of PAURUSH JIWAN with each box containing 6 strips of 10 capsules each, total being 8,520 capsules similar to that of the trade mark of the plaintiff. The same were handed over by the Ld. Local Commissioner to Sh. P K Jana, Ld. Counsel for the plaintiff on superdari. Accordingly, the prayer made in para 41(c) is allowed. The plaintiff shall carry out destruction of the seized goods.
26. Relief 41 (d) is for rendition of accounts. The defendant is ex-parte. As such the sales figures of the defendant in his absence is not available. In similar circumstances, the Hon'ble High Court of Delhi in the cases of Pepsico Inc Vs. PSI Ganesh Marketing CS (OS) 157/2013 decided on 19.05.2014, Cartier International AG Vs. Gaurav Bhatia CS (OS) 1317/2014 on 04.01.2016 and Christian Louboutin SAS Vs. Ashish Bansal CS (Comm.) 503/2016 on 31.07.2018 has been pleased to hold that the plaintiff can be awarded punitive damages. In the facts and circumstances of this case, I deem it appropriate to grant punitive damages to the plaintiff in the sum of Rs.2,00,000/- against the defendant. Plaintiff shall also be entitled to costs of the suit.
27. For the reasons recorded above, suit of the plaintiff is decreed in favour of the plaintiff and against the defendant in terms of prayers 41 (a) (i), 41 (a)
(ii), 41 (a) (iii) and 41 (d) of the plaint. Plaintiff is held entitled to recovery of punitive damages in the sum of Rs. 2,00,000/- against the defendant. Costs of the suit are awarded in favour of the plaintiff. Decree sheet be drawn upon deposit of deficient court fees, if any.
28. File be consigned to record room.
Announced in the open (REETESH SINGH)
court on this 12th day DISTRICT JUDGE
of October 2023 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS, DELHI
CS (Comm) No.50/2021 12