Delhi High Court - Orders
Amway India Enterprises Pvt. Ltd vs Adinath Enterprises & Ors on 10 January, 2019
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) 453/2018
AMWAY INDIA ENTERPRISES PVT. LTD. ..... Plaintiff
Through: Mr. Sudhir Chandra, Senior Advocate
with Mr. Sohan Singh Rana, Ms.
Priya Adlakha, Ms. Tulip De, Mr.
Ashish Sharma and Ms. Ruhee Passi,
Advocates. (M:9818202368)
versus
ADINATH ENTERPRISES & ORS. ..... Defendants
Through: Mr. Ashok Mittal and Mr. Rohit
Kumar, Advocates for D-1.
(M:9811485695)
Mr. Siddharth Batra,Mr. Ravinder
Kumar and Ms. Garima Sehgal,
Advocates for D-2 & 3.
(M:9953201386)
Mr. Dhananjay Pandey, Mr. Adarsh
Tiwari and Mr. M. Mukul, Advocates
for D-4 & 7. (M:9910313896)
Ms. Kumkum Jain, Advocate for D-5.
(M:9818099580)
Ms. Mahe Zehra, Advocate for D-6.
(M:9718201539)
Mr. Prateep Tewari, Advocate for D-
8. (M:8800576518)
Mr. Saikrishna Rajagopal, Mr. Nitin
Sharma, Mr. Sumant Narang and Ms.
Disha Sharma, Advocates for D-9.
(M:9810621272)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 10.01.2019 CS (OS) 453/2018 Page 1 of 6 I.A.297/2019
1. This is a fresh application seeking appointment of a Local Commissioner to visit the premises of Defendant No.8 - Aarjav International. On 26th November, 2018, the following directions were passed qua Defendant No.8.
"7. Affidavit-cum-undertaking filed on behalf of Defendant No.8's proprietor, Mr. Ravi Kumar Jain reveals a list of 78 ABOs and a list of products which were seized at Annexure A/2 with invoice numbers. Since the said Defendant appears to be in control of a large number of ABOs and the products are claimed to be genuine, the Plaintiffs representative is directed to visit the Defendant No.8's premises to verify the genuineness of these products and if they are found to be genuine, Defendant No.8 is allowed to sell the same back to the Plaintiff at cost price. The Plaintiff has agreed to purchase the said products at cost price and thus the cost price shall be deposited in Court."
2. Learned counsel for Plaintiff submits that instead of the Plaintiff's representative visiting the Defendant No.8's premises, they would prefer a Court Commissioner being appointed. Accordingly, Ms. Sonali Dhir, Advocate (M: 8826374673), who had earlier visited the premises of Defendant No.8, is appointed as a Local Commissioner to visit the premises of the Defendant No.8 - Aarjav Enterprises at House No.28, Ground Floor, Block G, Pocket- 22, Sector - 7, Rohini, New Delhi-110085, to conduct the following:
a) Detailed inspection/examination of the inventorised goods to check their genuineness.
b) To scan the unique codes printed upon the seized/inventorised CS (OS) 453/2018 Page 2 of 6 Amway products and verify the same with Annexure A2, filed by the Defendant No.8 along with his affidavit.
c) To collect all the invoices/other documents in respect of the seized Amway products.
d) To get copies of the 107 ABO cards and file the same before this Court.
3. The Defendant No.8 has agreed to cooperate with the Local Commissioner and hence no police assistance would be required. Defendant No.8 undertakes not to create any impediment in the execution of the commission. The fee of the Local Commissioner is fixed at Rs.50,000/. Report be submitted within two weeks. I.A. is disposed of. CS (OS) 453/2018, I.As. 12419/2018, 12420/2018 & 14613/2018
4. Affidavit of Mr. Saurab Jain, proprietor of Defendant No.1 - Adinath Enterprises has been filed. In the said affidavit, the details of the persons, from whom he procured Amway Products, have been mentioned. Defendant No.1 undertakes not to make any sales of Amway products on any online platform and e-commerce platform. Accepting the affidavit and undertaking given by advocate Mr. Ashok Mittal, counsel on behalf of the Defendant No.1, the suit is decreed against the Defendant No.1 in terms of the injunction prayer.
5. Learned counsel for Plaintiff submits that Mr. Saurab Jain, who is proprietor of Adinath Enterprises - the Defendant No.1 was a preferred customer of the Plaintiff, and this fact was not disclosed in the affidavit filed by Defendant No.1. Since the Defendant No.1 was well conversant with the contractual conditions, it is clear that the Defendant No.1 has not only violated the terms of the contract with the Plaintiff, but also has not been CS (OS) 453/2018 Page 3 of 6 candid with the Court. Accordingly, all the products which have been seized by the Local Commissioner from the premises of the Defendant No.1 shall be handed over to the authorized representative of Plaintiff within a period of two weeks from today.
6. On behalf of the Defendant No.4, an affidavit has been filed stating that he has purchased the products from one Mr. Vimal Kumar. The affidavit is totally cryptic as no documents have been filed to show the said purchase. Learned counsel for the Plaintiff has pointed out that Shri Manish Kushwaha, proprietor of Defendant No.4 was also an ABO with Amway, who was already terminated in March, 2018. This fact has not been disclosed in the affidavit filed. Under these circumstances, Defendant No.4 cannot be deleted from the array of parties. Let the written statement be filed by Defendant No.4 within four weeks.
7. Learned counsel for Defendant No.4 submits that he is willing to hand over the seized goods to Plaintiff, who may sell the same and reimburse the amounts. However, in order to ascertain as to whether the goods are genuine or not, a Local Commissioner is being appointed, the expenses of which the Plaintiff shall bear at this stage. Accordingly, Mr. Vaibhav Sharma, Advocate (M: 9871955550), who had earlier visited the premises of the Defendant No.4, Vivid Solutions, at K.No. - 309/2, Main Road, Chattarpur, Opp. Dena Bank, New Delhi - 110074, is appointed as the Local Commissioner to conduct the following.
a) Detailed inspection/examination of the inventoried goods to check their genuineness.
b) To scan the unique codes printed upon the seized/inventoried Amway products and verify the genuinity of the same.CS (OS) 453/2018 Page 4 of 6
c) To collect all the invoices/other documents in respect of the seized Amway products.
8. The Defendant No.4 has agreed to cooperate with the Local Commissioner and hence no police assistance would be required. Defendant No.4 undertakes not to create any impediment in the execution of the commission. The fee of the Local Commissioner is fixed at Rs50,000/-. Report be submitted within two weeks.
9. Insofar as the Defendant No.5 is concerned, Mr. Atul Jain is present in Court today and he submits that he has filed his affidavit. He also admits that he is an ABO of Amway. He submits that he made purchases from Bhagirath Palace and sold online because margins which he earns from the said sales is higher than margins given by Amway itself. He further undertakes not to make any online sales through any e-commerce platforms. His undertaking is accepted. Seized products in the premises of Defendant No.5 shall be handed over to the Plaintiff within one week. Suit is decreed against Defendant No.5 in terms of the injunction order.
10. Insofar as Defendant No.6 is concerned, a counter affidavit has been filed by the Plaintiff responding to the Defendant No.6's affidavit. Learned counsel for the Defendant No.6 wishes to file a rejoinder affidavit, to the said affidavit. Let the same be done within two weeks. It is made clear that if the Defendant No.6 does not make complete disclosure of sales/purchases of its products, then strict action would be liable to be taken against the Defendant No.6.
11. Insofar as the Defendant No.7 is concerned, it is submitted on behalf of Defendant No.7 that all the products have been handed over to the Plaintiff's representative. Suit already stands decreed qua the Defendant CS (OS) 453/2018 Page 5 of 6 No.7.
12. Learned counsel for the Defendant Nos.2 & 3 is willing to return the products to Plaintiff, subject to further terms that may be imposed by the Court. The Plaintiff will take custody of these products and check if they are genuine and place a report on record on the next date.
13. These are five suits raising similar issues in respect of online sales of Amway products. On behalf of the Plaintiff, submissions have been heard in part in the injunction application and other pending applications.
14. List on 13th February, 2019 for further hearing. Interim orders to continue. Any other date before Court prior to 13th February, 2019 shall stand cancelled.
PRATHIBA M. SINGH, J.
JANUARY 10, 2019/dk CS (OS) 453/2018 Page 6 of 6