Gujarat High Court
Microsoft Corporation vs Azure Knowledge Corporation Pvt. Ltd on 9 August, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9620 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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MICROSOFT CORPORATION
Versus
AZURE KNOWLEDGE CORPORATION PVT. LTD.
==================================================
Appearance:
MR KAMAL TRIVEDI SR. ADVOCATE, MR MIHIR JOSHI SR. ADVOCATE with MR
HARSHIT S TOLIA(2708) for the Petitioner(s) No. 1,2 VMP LEGAL(7210) for the
Petitioner(s) No. 1
MR UNMESH SHUKLA SR. ADVOCATE with MR. JAY KANSARA for M/S
WADIAGHANDY AND CO(5679) for the Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 09/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this writ petition, petitioner - original defendant Page 1 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined nos. 1 and 2 have challenged the legality and validity of an order dated 04.05.2023 passed by the Commercial Court, City Civil Court, Ahmedabad, in an application below Exhibit-92 in Commercial Civil Suit No. 533 of 2021, whereby an application for seeking amendment in the written statement came to be disallowed.
2. The brief background of fact which has given rise to the present petition is that petitioner no. 1 was founded in the year 1975 and came to be incorporated in the year 1981 in Washington State, USA, having business interests in several products and services range including, Software, computer services, devices and solutions. Further petitioner no. 1 also develops, manufactures, licenses, supports and sells computer software and deals with in consumer electronics, handheld devices, personal computers as well as services and since about three decades is well recognized in the field. Petitioner no. 2 - original defendant no. 2 is a wholly-owned subsidiary of petitioner no. 1, which came to be incorporated in the year 1988 under the provisions of the Companies Act, 1956. Page 2 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined 2.1 Petitioner no. 1 - AZURE platform is a cloud computing platform which is a comprehensive set of cloud services that offer developers, IT professionals, and enterprises, freedom to build, deploy and manage applications on any platform or device. A detailed description of the petitioners' cloud computing offerings is stated in the written statement. 'AZURE' was first announced by petitioner no. 1 somewhere in October, 2008 and later on services offered by petitioners under AZURE mark were made available and offered for sale to consumers across about 21 countries including India in February, 2010 and petitioner no. 1 became registrant of azure.com around October, 2008, when it acquired rights to the domain from the prior registrant, who had rights in the said domain since about October, 1995. As per the case of original plaintiff, respondent herein was a private limited company incorporated on 23.04.2001 and later on its name changed to AZURE Knowledge Corporation Pvt. Ltd., on 05.06.2008. According to petitioners, it become owner of the mark by way of Assignment Deed dated 12.04.2004 executed between Styx Infosoft Pvt. Ltd., and AZURE Technologies Pvt. Ltd. A suit came to be filed by the Page 3 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined respondent in City Civil Court, at Ahmedabad under the provisions of Trade Marks Act, being Civil Suit No. 192 of 2020 alleging infringement and passing of action by inter alia claiming its proprietary right in respect of Trade Mark "AZURE". The details of its registration of different trade mark in different classes as defined under the then notified Trade Mark Rules and according to respondent, original plaintiff had made averments in the plaint regarding wide gambit of goods and services covered by its registrations in various classes, though plaintiff does not deal in most of those goods and services.
2.2. Since the said suit proceedings are of commercial in nature, the same was transferred to Commercial Court/ Division of City Civil Court at Ahmeabad and the suit was registered as Commercial Civil Suit No. 533 of 2021. Upon receipt of summons, present petitioners filed their written statement even to the amended plaint of respondent and it was specific stand of the petitioners that; "(a) the business activity of the plaintiff is limited to KPO/BPO and market research services ; (b) cloud Page 4 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined computing services offered by petitioners are vastly different and distinct from the respondent's business activities; (c) there is no actual overlap in the offering of rival parties and as such, respondent - original plaintiff may be put to strict proof to show any likelihood of confusion. On the basis of the said stand, after hearing the parties to the proceedings, Commercial Court, dealt with an interim relief application below Exhibit-5, which came to be dismissed vide order dated 14.03.2022. Said order refusing interim relief was challenged before this Court by way of Appeal from Order No. 120 of 2022, in which reply was filed by petitioners and after hearing the learned advocates appearing for the respective parties, according to the petitioners, the Court reserved the order. 2.3. Later on, the present petitioners filed application below Exhibit-92 under Order VI Rule 17 read with Section 151 of Code of Civil Procedure for seeking amendment of the written statement, basically to state that the plaintiff's registration for AZURE marks are unreasonably broad and as a result of this, it creates monopolistic rights over wide range of goods and Page 5 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined services, even though there is no use by the respondent - plaintiff. Moreover, the original plaintiff obtained registration by wrongly claiming use of AZURE marks since May, 1996 in- relation to broad range of goods and services, without placing any documents on records to substantiate such a far-fetched claim and as such, registration of original plaintiff being unreasonably broad in respect of goods and services, a false claim of use raised is liable to be cancelled or even partially cancelled. However, the stand of present petitioners was to add one contention to the effect that law is clear that one registered proprietor cannot file a suit for infringement against another registered proprietor of a trademark and the original defendants are also registered proprietor of the 'WINDOWS AZURE Mark' and accordingly, cannot be held liable for infringement.
2.4. It is the case of petitioners that said application came to be contested by filing reply at Exhibit-93 on 23.12.2022 and later on, suit was adjourned on account of pendency of Appeal from Order No. 120 of 2023 before this Court. Thereafter the Page 6 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined respondent herein filed Civil Application (IA) No. 1 of 2023 before this Court in pending Appeal from Order, praying for stay of further proceedings of commercial suit. Ultimately, the respondent withdrew the said Civil Application and an order was passed to that effect on 14.02.2023. Later on, the respondent also withdrew the said Appeal from Order which was permitted to be withdrawn vide order dated 28.03.2023. However, while permitting such withdrawal, it was directed to the trial court to dispose of the suit proceedings as early as possible, but not later than, one year. After disposal of said Appeal from Order, an application below Exhibit-92 for seeking amendment was heard by the trial court and the trial court was pleased to dismiss the said application vide order dated 04.05.2023, which has given rise to the present petition.
3. On 21.06.2023, the Court after hearing learned Senior Advocate appearing for the petitioners issued notice and later on, it has come up for consideration before this Court and lastly on 17.07.2023, on which date, the learned Senior Advocates appearing for the respective parties have requested the Court Page 7 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined that since the issue is relating to amendment, and trial court is supposed to take up hearing of the suit in time schedule manner, the petition be heard finally and upon request of both the learned counsel appearing for the respective parties, the Court took up the hearing.
4. Mr. Mihir Joshi, learned Senior Advocate assisted by Mr. Harshit Tolia, learned advocate appearing for the petitioners has vehemently contended that the trial court has not properly appreciated the object of tendering amendment. In fact, according to Mr. Joshi, learned Senior Advocate, the contents of paragraph 19 of the written statement are not to be deleted nor any attempt is made to resile from it and the tenor of written statement conveys denial of respondent's claim of overlap of offerings of the rival parties. The petitioners - original defendants have consistently pleaded that the original plaintiff does not offer goods or services being offered by the present petitioners - defendants. In fact petitioners - defendants have opposed plaintiff's trademark applications on the ground that the goods and services and the claim of use, far exceeds Page 8 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined reality and as such, the amendment is merely an extension of defence, rather an explanatory form, which clearly ought to have been entertained. Mr. Joshi, learned Senior Advocate has submitted that there is a slight distinction in proposition of law on the issue of amendment seeking to amend the plaint vis-a-vis written statement. Hence, when there is no backing out from the stand which has already been taken, the conclusion arrived at by the trial court is not only erroneous, but perverse. 4.1. Mr. Joshi, learned Senior Advocate has further submitted that the trial court ought not to have concluded that validity of respondent - plaintiff AZURE marks is admitted by the petitioners, but in fact, there is a crucial distinction recognized at law between registered status of a mark and its validity and the third party's ability to challenge that validity. The petitioners - defendants have simply acknowledged respondent
- plaintiff's assertions regarding registration of trademark AZURE mark as is reflecting from the relevant register. Had there been a case that there is a complete withdrawal of the so- called admission from the earlier statement, possibly the trial Page 9 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined court could have taken a different view, but here is a case where there is no withdrawal of paragraph 19 from the written statement and as such, the order passed by the trial court requires to be interfered with. It has further been contended that petitioners - defendants proposed to carry out amendment in the written statement in furtherance of defence, but unfortunately, the same is misconstrued and that being so, such illegality which has been crept in deserves to be corrected. Mr. Joshi, learned Senior Advocate has submitted that petitioners have categorically stated in the written statement the circumstances which form part of the public records, hence not denied, but that would not mean that petitioners cannot question the validity which can always be assailed by the petitioners. It has been further contended that by incorporating such amendment which has been sought in the written statement, the plaintiff is not going to be prejudiced in any manner. On the contrary, the same would facilitate the trial court to adjudicate the real controversy in its proper perspective. Mr. Joshi, learned Senior Advocate has submitted that the suit at present is at the stage where even issues are yet Page 10 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined to be framed and by a reasoned order, trial court had already rejected injunction application below Exhibit-5, against which Appeal from Order which was submitted by the respondent came to be disposed of as not pressed and as such, in this set of circumstance, if amendment is allowed at this stage of the proceedings, same would not cause any prejudice. On the contrary, the same would facilitate to arrive at a right conclusion. Mr. Joshi, learned Senior Advocate has further submitted that the admission which is sought to have been canvassed by the respondent - plaintiff before the trial court is in fact, no admission in clear and unequivocal terms and as such, with a view to clarify and explain the defence without seeking deletion of the relevant paragraphs, precisely paragraph 19, a contention is sought to be made which cannot be said to be impermissible. In fact, law is settled that it is always permissible to take an alternative plea in the written statement, which may be either to substitute or alter the defence or take inconsistent plea as well and hence, so long as it is not withdrawn at admission in its true sense, even inconsistent plea also can be taken in the written statement. Page 11 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined Paragraphs (h) & (i) which are sought to be incorporated in the written statement, as such would not in any way distort the basic defence or not get effect of complete adjudication of so- called admission as stated by learned Senior Advocate and as such, when that be so, the order passed by the learned trial court is not in consonance with the well recognized principles of law on the issue of amendment in the written statement. By reiterating the submission, that even if it is assumed to be admission about the trademark on the basis of its registration, it is impermissible for the respondent plaintiff to use such trademark in such a wide range, where undisputedly, in several goods and services, the plaintiff is not dealing. It has been further submitted that the petitioners are also having registration since several years as indicated, but the conclusion arrived at by the trial court is as such, not in consonance with the law.
4.2. Mr. Joshi, learned Senior Advocate as such, relying upon few decisions delivered by the Hon'ble Apex Court and Delhi High Court, respectively, has submitted that keeping in view the Page 12 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined law on the issue of amendment in written statement, the error committed by the trial court deserves to be rectified by setting aside the impugned order. For this purpose, Mr. Joshi, learned Senior Advocate has relied upon the following decisions :
"(1) In the case of Rajesh Kumar Aggarwal & Ors., v.
K.K. Modi & Ors., reported in (2006) 4 SCC 385; (paragraphs 14-22).
(2) In the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) Through Lrs., & Ors., reported in 1995 Supp (3) SCC 179 (paragraphs 1 & 3 );
(4) In the case of L.T. Foods Ltd., v. Sachdeva & Sons Rice Mills Ltd., & Ors., reported in 2014 SCC Online Delhi 4616 (paragraphs 3, 6, 7, 8, 13(I), (VI), (VII), 24, 25, 27).
(5) In the case of Usha Balashaheb Swami & Ors., v. Kiran Appaso Swami & Ors., reported in (2007) 5 SCC 602 (paragraphs 8, 12, 17, 19, 22).
(6) In the case of Hari Steel & General Industries Ltd., & Anr., v. Daljit Singh & Ors., reported in (2019) 20 SCC 425 (paragraph 25)."
And by referring to the observations contained in the aforesaid Page 13 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined decisions in respective paragraphs, Mr. Joshi, learned Senior Advocate has requested that material error which has been committed by the trial court, deserves to be corrected by quashing and setting aside the same.
5. In chorus, Mr. Kamal Trivedi, learned Senior Advocate appearing for one of the petitioners has also submitted that if the application to be perused, what is meant for is incorporation of paragraphs (h) and (I), in addition to original written statement's paragraphs (a) to (g), and this amendment is sought merely for the purpose of addition to the main defence which on the contrary, would facilitate the trial court to arrive at just conclusion. Mr. Trivedi, learned Senior Advocate has further submitted that, close perusal of the amendment which is sought to be in furtherance of written statement is reflecting that what has been admitted is registration of original plaintiff's trademark based upon public records, the same would not construe as acceptance of validity of it, as the same would require detailed examination and as such, when the defence is sought to be explained with clarification and with addition, same Page 14 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined is always permissible in view of the settled proposition of law. Mr. Trivedi, learned Senior Advocate has further drawn attention to Sections 28 and 31 of the Trade Marks Act, and has submitted that it is a mere alternative plea which is raised by way of defence and for which, amendment is sought and theory of admission which has been tried to be projected is rather unreality to provisions contained in Section 28(3) of the Trade Marks Act and mere acceptance of entire public record which otherwise cannot be denied, cannot be misconstrued as acceptance of validity thereof. Hence, when it is permissible for the defendants to take mutually destructive plea or rather inconsistent plea as well, there is hardly any reason for the original plaintiff to contend that admission is sought to be withdrawn. In fact, when there is no admission about validity, the question of withdrawal does not arise. Hence, Mr. Trivedi, learned Senior Advocate has requested that the order deserves to be set aside. It may be that the entry in the register about registration of the plaintiff's trademark may have prima facie view about its validity, but the same cannot construe at this stage of the proceedings that defendants have accepted the Page 15 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined validity and wanted resile from it. Hence, serious error is committed by the trial court in passing the impugned order. In fact, several contentions were agitated before the trial court and clear thin distinction as indicated above is projected, but same having not been considered, order suffers from vice of perversity, which deserves to be corrected. After referring to the reasons assigned by the trial court, Mr. Trivedi, learned Senior Advocate has submitted that if this view is permitted to exist, serious prejudice would be caused to the petitioners and petitioners may face straight decree in the proceedings and as such, on the contrary denial of amendment has got serious prejudice to the petitioners. Hence, serious error is committed by the trial court, which requires intervention of this Court.
6. To strengthen his submission, Mr. Trivedi, learned Senior Advocate has made a reference to two decisions in addition to what has been submitted by Mr. Joshi, learned Senior Advocate and by referring to following two decisions a contention is reiterated that the order is not sustainable in the eye of law and accordingly deserves to be set aside Page 16 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined "(i) In the case of Mahendra Raida & Television & Anr., v. State Bank of India reported in 1998 SCC Online ALL 408 (paragraph 8).
(ii) In the case of Bithi Chakraborty v. Indira Chatterjee & Ors., reported in C.O. No. 1656 of 1986 decided on 23.09.1993 by High Court of Calcutta (paragraphs 12 to 14)."
And by referring to these two decisions, it has been submitted that the order passed by the trial court requires to be interfered with.
7. As against this, Mr. Unmesh Shukla, learned Senior Advocate has vehemently opposed the stand of the petitioners and has submitted that the decisions which are tried to be relied upon by learned Senior Advocates are altogether in a different facts situation and by picking few paragraphs, it cannot be said that the same are to be applied as straight-jacket formula. In fact, it has been submitted that the suit is basically for infringement of trademark of petitioners and whose registration of it is prima facie evidence about its validity and therefore, when plaintiff has specifically admitted the factum of its validity Page 17 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined and existence of it on the register, amendment which is tried to be brought is indirectly taking out admission to that effect which has been mentioned in the written statement and as such, such kind of amendment which has got effect of taking out admission itself, would not be permitted. It has been further submitted that if there is any grievance about validity of the trademark by the original plaintiff then the statute has prescribed remedy under Section 47 of the Trade Marks Act to agitate and having not done so, it would not be proper for the defendants i.e. present petitioners to take such a plea under the present proceedings where the facts about registration are admitted. In fact, looking to the various provisions contained in Trade Marks Act, precisely Sections 28, 30 (2) (e) and 47 as well as Section 124, the plea which is sought to be incorporated in the written statement is certainly prejudicial to the plaintiff. By referring to sub-section (i) of Section 124 of the Trade Marks Act, Mr. Shukla, learned Senior Advocate has submitted that the prejudice is clearly reflecting from those provisions, if such kind of amendment is allowed. Mr. Shukla, learned Senior Advocate has submitted that this amendment is not bona fide and when Page 18 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined bona fides are not there, it is always open for the trial court to consider the said conduct while exercising discretion. Mr. Shukla, learned Senior Advocate has submitted that in fact there is no overlap in any form which is tried to be projected before the Court and on the contrary, lack of knowledge is also equivalent to non denial and as such, under the guise of explanatory defence by incorporating amendment indirectly, the defendants have tried to take away their admission which are contained in several paragraphs of the written statement and as such, the said amendment if allowed would definitely prejudice the plaintiff.
7.1. By referring to contents of written statement from the original records, precisely, paragraph 17 onwards, Mr. Shukla, learned Senior Advocate has submitted that the plea of validity has never been raised at anywhere in the written statement, rather it is admitted and by smart pleading, such admission is tried to be diluted or taken away under the guise of amendment which has rightly not been encouraged by the trial court. Page 19 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined 7.2. To substantiate his stand about prejudice and the effect of registration, Mr. Shukla, learned Senior Advocate has drawn attention to certain provisions which are referred to herein- above and in the context of it, Mr. Shukla, learned Senior Advocate has drawn attention of this Court to paragraphs 4, 7 & 9 of the plaint and then has also drawn attention to few paragraphs of written statement as indicated above and after referring to this, amendment which is sought for, is stoutly resisted by learned Senior Advocate Mr. Shukla. 7.3. Mr. Shukla, learned Senior Advocate has further submitted that rules of pleadings are always to be strictly adhered to as far as commercial disputes are concerned and for contending that it has been submitted that in view of the amendment which has taken place in certain provisions of Code of Civil Procedure, this general principle of amendment which is tried to be projected can never be applied when there is a dispute of commercial nature and the proceedings are relating to commercial courts. By referring to Order VIII Rule 3 of Code of Civil Procedure, as well as Rule 4 and 5, Mr. Shukla, learned Page 20 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined Senior Advocate has submitted that this general proposition which is tried to be canvassed by the petitioners has no legs to stand when the Court is dealing with the commercial suit proceedings. Hence, there appears to be no error committed by the trial court. In fact, significance of pleadings is vital issue as far as suits are concerned. Hence, looking to the reasons which are assigned by the trial court, there appears to be no irregularity much less any illegality and the conclusion arrived at by the trial court is just and proper. Mr. Shukla, learned Senior Advocate has submitted that an attempt of tendering amendment and trying to assert is to destroy the clear admission which has crept in while preparing written statement. On the contrary, an application moved with mala fide intent has got clear effect of prejudice upon the plaintiff and certainly it means displacing the clear stand and acceptance about validity. Hence, Mr. Shukla, learned Senior Advocate has submitted that the order does not call for any interference. It has been submitted that no doubt inconsistent defence also can be taken by the defendants, but then the defendants' clear admission which has crept in cannot be taken away under the guise of Page 21 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined amendment. Hence, a request is made not to entertain the petition. In addition to it, Mr. Shukla, learned Senior Advocate has submitted that this being petition under Article 227 of the Constitution of India, when the view is taken by the trial court in exercise of discretion vested in law, in the absence of any material irregularity, the same may not be interfered with nor substituted. Hence, a request is made not to entertain the petition.
7.4. Large number of decisions have been tried to be tendered before the Court by way of list of decisions, but few are pressed into service more particularly, (i) In the case of Badat & Co. Bombay v. East India Trading Co. reported in AIR 1964 SC 538 (paragraph 11); (ii) In the case of Sushil Kumar v. Rakesh Kumar reported in (2003) 8 SCC 673 (paragraphs 71, 73); (iii) In the case of Suzuki Motors v. Suzuki (India) Ltd., reported in (2019) SCC Online Delhi 9241 (paragraphs 42, 43, 44, 45 & 46) and (iv) In the case of S. Oliver Bernd Freeier Gmbh & Co. KG v. Karni Enterprises & Anr., reported in 2006 SCC Online Delhi 1317 (paragraphs 13 to Page 22 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined
15) and by referring to these decisions, a contention is raised that in view of the settled proposition of law, the amendment which is tried to be insisted upon may not be permitted and same has rightly not been permitted by the trial court. Hence, this is not a fit case for exercising of extraordinary jurisdiction. No other submissions have been made.
8. Having heard the learned counsel appearing for the respective sides and having gone through the material and the decisions placed before us, while dealing with the controversy, following few facts deserve consideration and hence, we deem it proper to quote hereunder :-
8.1. From the contents of the application submitted under Order VII Rule 17 read with Section 157 of the Code of Civil Procedure, what has been sought for appears to be an addition in the stand taken in the original written statement. The following paragraphs are sought to be added, which we deem it proper to incorporate hereunder :-
" (h) The plaintiff has alleged that it enjoys statutory rights in the AZURE mark by virtue of its registrations in Classes Page 23 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined 9, 16, 37, 38, 41 and 42. Since registration confers valuable right on the proprietor, the intention to use the trademark must be genuine and real. In the instant case, the Plaintiff has obtained registrations in numerous classes without any bona fide intention to use the registered marks for the goods/services claimed. The plaintiff's registrations are for unreasonably broad specification and as a result, create monopolistic rights over a wide range of goods and services even though there is no use by the Plaintiff. Moreover, the Plaintiff has obtained registrations by wrongly claiming use of the AZURE marks since May 1, 1996 in relation to broad range of goods and services, without placing any document on record to substantiate such a far-fetched-
claim. The plaintiff's registrations for unreasonably broad range of goods and services, which have been obtained with false claim of use, are invalid and liable to be cancelled partially cancelled.
(i) Even otherwise, the law is clear that one registered proprietor cannot stop another from using its own registered mark. Therefore, Defendant no. 1 being the registered proprietor of the WINDOWS AZURE mark, cannot be held liable for infringement." 8.2. On perusal of this aforesaid contents of amendment is in substance that original plaintiff's registration are unreasonably broad which tantamount to create monopolistic right over wide range of goods and service though same are not even in use by the plaintiff and as such, such a far-fetched claim deserves to be partially cancelled and further it appears that a contention is tried to be taken that one registered proprietor cannot stop another from using its own registered trademark and as such, Page 24 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined original defendant no. 1 being registered proprietor of 'Windows AZURE' mark cannot be held liable for infringement. This amendment, prima facie does not have the effect of withdrawal of original stand taken in the written statement, but as to the effect of extension of the stand, which according to opponent is an inconsistent plea. In the context of this, the written statement which has been placed on record in the amended form reflecting on page 139 onward, has indicated, clarified as to what would be ultimate stand. Paragraphs 15, 16, 17, 18, 19 and 20 are relevant assertions reflecting such stand and as such, we deem it proper to quote hereunder :-
"15. The contents of paragraph 3 are rejected as the claim of the Plaintiff that it has used AZURE for a variety of businesses specifically, Virtual & Augmented Reality services and Mobile Platform services, since 1996 is very far-fetched. That being said, as stated by the Plaintiff andper its own website, the Plaintiff functions predominantly in the call-centre industry and its core business is to provide data collection, data organization, and data analytics to its clients. A thorough read of the documents submitted along with the Plaint also suggest that he Plaintiff is essentially a market research/survey company. Arguendo, even if the Plaintiff's tall claims were to be believed, the services mentioned in the paragraph under reply function within separate niche markets. Such being the case, the Plaintiff's accreditation are of no significance to the present proceedings and even otherwise, the Plaintiff has sought to rely on accreditation that have already expired.Page 25 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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16. The contents of paragraphs 4 to 7 are admitted to the extent that they form part of public record. The Defendants have no knowledge of the Plaintiff's predecessor or their business profile and hence the contentions are rejected.
17. The contents of repeated paragraph 7 and paragraphs 8 to 13 are rejected for lack of knowledge, save except what forms part of public record. Reliance is placed on paragraph 10 and as well as the preliminary submissions above. It is specifically denied that the Plaintiff has an active or significant social media presence as these pages are either not updated regularly or do not have any significant following. It seems that the Plaintiff is intentionally overstating its professional and business capabilities to mislead this Hon'ble Court into believing that there is an overlap of goods and services.
18. The contents of paragraphs 14 to 16 are nothing but self-aggrandizing statements about the Plaintiff's business and are rejected for want of knowledge. Moreover, if anything, the contents of the paragraphs under reply further establish that the Plaintiff's core business is restricted to providing market research and analytical services and as such, its core competency deals with drawing conclusions from data sets for its clients. These can be distinguished from the AZURE offerings of the Defendants.
19. The contents of paragraphs 17 and 18 that form part of public record are admitted and do not merit a response. As stated above, the Plaintiff has distinguished both its logo ie. AZURE (vide trade mark registration nos. 1946117 and 1946118) as well as word mark AZURE (vide trade mark registration nos. 2120453 and 2120454) from Defendant No. 1's application for AZURE bearing application no. 1747500 and cannot now be allowed to base a suit on the similarity of the marks.Page 26 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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20. The contents of paragraphs 19 to 23 that are nothing but self-aggrandizing statements about the Plaintiff's business. It is specifically denied that the products and services of the Plaintiff are in great demand or that they have acquired tremendous goodwill and reputation in the market. It is rejected that the Plaintiff's clientele includes companies such as Google, Reliance, Diageo, Schneider Electric etc., as no documentation has been placed on record by the Plaintiff to substantiate its tall claims. By its own admission, the Plaintiff has grown significantly over the past decade and hence, it is evident that the use of AZURE by the Defendants has made no adverse impact on the Plaintiff's business. This further reinforces that the goods and services of the parties do not overlap. Additionally, the Plaintiff's accreditation being mostly for market research and expired are of no significance to the present proceedings."
8.3. Now in the context of this stand a further assertion contained in paragraphs 22 and 24 is also kept in mind and in paragraph 19, as stated herein-above, since the contents of paragraphs 17 and 18 of the plaint are part of the public records, the same are stated to be admitted and no response was given. Hence, a perusal of the assertion made in the written statement as indicated above and what is sought to be amended if reconcile, the ultimate grievance is that registration of plaintiff's mark is unreasonably broad as the effect creating monopolistic right over wide range of goods and services which are even not in use by the original plaintiff. However, the said Page 27 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined aspect is a matter of ultimate adjudication and as such, we are not inclined to express any thing on it as the same is not within the realm of controversy involved in the present petition. It is to be noted here that it is a trite law that the amendment in the plaint and the written statement is to be viewed slightly on a different perception and this is in view of fact that the defendant can take even inconsistent plea as well. The present position is that the original suit is at a stage where even the issues are yet to be framed and the trial has not began. The interim relief application of the opponent - original plaintiff stood rejected against which, Appeal from Order was also not pressed and as such, in a situation like this, even the issues have not been framed, the amendment whether affects prejudicially to the rights of the plaintiff or whether can be considered to be allowed is the central issue involved in the proceedings. 8.4. No doubt, at this stage, Mr. Shukla, learned Senior Advocate has pointed out the effect of prior registration, the effect of consequential Sections 28, 30, 31 read with Section 124 of the Trade Marks Act, but then, these provisions can be Page 28 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined taken care of at the time when final adjudication is taking place. Even the pleadings which are reflecting can also be examined during the course of adjudication and as such, a conjoint reading of the amendment coupled with written statement's assertion is not suggesting that the defendants are trying to take away admission in its totality and this is more so when there is no clear assertion that the defendants are trying to resile from the stand in any manner by virtue of incorporation of two paragraphs as indicated above namely '(h) and (i)'. At this stage, we may deem it proper to quote few observations made by Hon'ble Apex Court and the High Court respectively, with regard to the issue in question which have been pointed before us. Mr. Joshi, learned Senior Advocate has drawn our attention to few decisions which are quoted hereunder: -
"(1) In the case of Rajesh Kumar Aggarwa; & Ors., v.
K.K. Modi & Ors., reported in (2006) 4 SCC 385 (paragaphs 18, 19 and 22) "18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered Page 29 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.
22. We shall now consider the judgments cited by learned senior counsel for the appellants:-
1. M/s Ganesh Trading Co. vs. Moji Ram (1978) 2 SCC 91 This Court held that the main rules of pleadings in Order 6, CPC, 1908, show that provision for the amendment of pleadings subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from any amendment, are intended for promoting the ends of justice and not for defeating them. This Court further held that the amendment only sought to give notice to the defendant on facts which the plaintiff would and could have tried to prove in any case. Such notice was given only by way of abundant caution so that no technical objection can be taken that what was sought to be proved was outside the pleadings.Page 30 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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2. Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, 1969 (1) SCC 869 It was held that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
3. Ragu Thilak D. John vs. S. Rayappan and Others (2001) 2 SCC 472 Sethi, J. speaking for the Bench has observed that the amendment sought would change the nature of the suit originally filed was not a reason for refusing application for amendment and that the dominant purpose of Order VI Rule 17 was to minimise litigation and that the plea that the relief sought for by way of amendment was barred by time is arguable in the circumstances of the case. This Court further observed in para 5 as under:
"5. After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50, L.J. Leach & Co. Ltd v. Jardine Skinner & Co., AIR 1957 SC 357, Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 and various other authorities, this court in B.K. Narayana Pillai v.
Parameshwaran Pilla, (2000) 1 SCC 712 held:
(SCC p.715, para 3) "3. The purpose and object of Order 6 Rule 17 Page 31 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances.
But it is equally true that courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled- for multiplicity of litigation."
(2) In the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chudhary (Dead) Through LRs & Ors., reported in 1995 Supp (3) SCC 179 (paragraph 3) "3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. Be that so." (3) In the case of L.T. Foods Ltd., v. Sachdeva & Sons Rice Mills Ltd., & Ors., reported in 2014 SCC OnLine Del 4616 (paragraphs 13 & 26) Page 32 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined "13. The legal position regarding amendment of written statement is well settled. The principles culled out from various judicial decisions regarding amendment of written statement are being enumerated herein under:-
I The object of Order VI Rule 17 CPC is that the court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to either side.
II The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in larger interest of doing full and complete justice to the parties before the court. Thus, the court should always give leave to amend pleadings of a party unless it is satisfied that the party applying was acting malafide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice.
III Amendment sought after substantial delay could be allowed even if barred by limitation if that sub- serves the cause of justice and avoids further litigation.
IV While dealing with amendment applications the Courts should not adopt a hyper technical approach. Liberal approach should be general rule particularly in cases where the other party can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties.
V Amendments should be refused only where the other party cannot be placed in the same position Page 33 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined before the amendment but the amendment would cause him an injury which could not be compensated in costs.
VI A prayer for amendment of the plaint and a prayer of written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. The aforesaid principle does not apply to the amendment of the written statement.
VII In case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice is far less in the former than in the latter. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
VIII Inconsistent and alternative pleas can be allowed to be taken in a written statement provided they are not destructive of each other.
IX Mere delay in making an amendment application itself is not enough to refuse amendment particularly when the delay does not cause serious prejudice to the other party and can be compensated in terms of money.
X It would not be open to a party to wriggle out of an admission made by him by seeking amendment of the written statement as admission is a material piece of evidence which would be in favor of a person who would be entitled to take advantage of that admission. However, the admission can be explained and it would be permissible to add rider Page 34 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined and/or proviso thereto while keeping the admission intact.
(The afore-noted principles have been culled out by us from the decisions of the Supreme Court reported as AIR 2006 SC 1646 Rajesh Kumar Aggarwal & Ors v. K.K. Modi, AIR 2004 SC 4102 Pankaja & Anr. v. Yellapa (D) by LRs & Ors, 2000 (1) SCC 712 B.K. Narayana Pillai v. Pararaneswaran Pillai, AIR 1957 SC 363 Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors, (1976) 4 SCC 320 Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co and (2007) 5 SCC 602 Usha Balasaheb Swami v. Kiran Appaso Swami).
26. As regards the submission relating to withdrawal of admission(s) contained in the unamended written statement, suffice would it be to state that after going through the (unamended) written statement and application for amendment of the written statement in depth, we do not find that the respondent No.1 had sought to withdraw any admission made by it by way of amending its written statement.
(4) In the case of Usha Balashaheb Swami & Ors., v. Kiran Appaso Swami & Ors., reported in (2007) 5 SCC 602 (paragraphs 19, 24 & 27).
"19. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in Page 35 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
24. Coming back to the facts of the present case regarding amendment of the written statement, we find that the appellants had stated in para 8 of their original written statement "that plaintiff and defendant nos. 1 to 7 have got = share and defendant nos. 8 to 14 have got = share in all the family properties" and that the maternal aunts have also got share. By seeking incorporation of paras 8A and 8B and substitution of para 8 in the written statement, the appellants have maintained the admissions made by them in para 8 of the written statement but added a proviso or condition to the admission. Therefore, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our view, is permissible in law and the question of withdrawing the admission made in para 8 in its entirety in the facts as noted herein above, therefore, cannot arise at all.
27. As noted herein earlier, Mr. Lalit while inviting us to reject the application for amendment of the written statement as was done by the High Court had placed strong reliance on the case of Modi Spinning (supra). In that case, a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000 against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7th April, 1967 the plaintiff worked as their stockists-cum distributor. After three years the defendants by application under Order 6, Rule 17 of the Code sought amendment of written statement by substituting paras 25 to 26 with a new para in which they took the fresh plea that plaintiff Page 36 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined was a mercantile agent cum purchaser, meaning thereby that they sought to go beyond their earlier admission that the plaintiff was a stockist-cum- distributor. In our opinion, the present case can be distinguished from that of Modi Spinning case. In that case, the pleadings that were being made by the plaintiff for amendment were not merely inconsistent but were resulting in causing grave and irretrievable prejudice to the plaintiff and displacing him completely. In paragraph 10 of this decision this Court also appreciated that inconsistent pleas can be made in the pleadings but the effect of substitution of paragraphs 25 and 26 in that decision was not making inconsistent and alternative pleadings but it was seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. In the facts of that decision this Court further held that if such amendments were allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. That apart in that decision the High Court also rejected the application for amendment of the written statement and agreed with the trial court. This decision in the case of Modi Spinning would not stand in the way of allowing the application for amendment of the written statement as the question of admission by the defendants made in the written statement, more particularly in paragraph 8 of the written statement, was not at all withdrawn by the amendment but certain paragraphs were added inviting the plaintiff and defendants 1 to 7 to prove their legitimacy on the death of Appaso. That being the position, we do not think that Modi Spinning case will at all stand in the way of allowing the application for amendment of the written statement. It is true that in the case of Basavan Jaggu Dhobi this Court, in the facts of that case, held that it would not be open to a party to wriggle out of admission as admission is a material piece of which would be in favour of a person who Page 37 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined would be entitled to take advantage of that admission. In the present case, admission made in Para 8 of the written statement was not at all withdrawn but only a rider and/or proviso has been added keeping the admission in tact. In that decision also this Court has appreciated the principle that even the admission can be explained and inconsistent pleas can be taken in the pleadings and thus amendment of the written statement can be allowed. In our opinion, as noted herein earlier, in the present case, the amendment would not displace the case of the plaintiff, as it would only help the court to decide whether the respondents are eligible to the said share in the property on proof of their legitimacy for which no irretrievable prejudice would be caused either to the plaintiff or to defendant nos. 2 to 8. Accordingly, we do not think that Basavan Jaggu Dhobi could be applied in the facts of this case, which is clearly distinguishable."
(5). In the case of Baldev Singh & Ors., v. Manohar Singh & Anr., reported in (2006) 6 SCC 498 (paragaphs 15, 16 & 17).
"15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not Page 38 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. Vs. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.
17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already Page 39 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."
(6) In the case of Hari Steel & General Industries Limited & Anr., v. Daljit Singh & Ors., reported in (2019) 20 SCC 425 (paragraph 25) "25.. In the judgment in the case of Himani Alloys Limited vs. Tata Steel Limited (supra), nature and scope of Order XII Rule 6 has been considered by this Court. In the aforesaid judgment this Court has held that the discretion conferred under Order XII Rule 6 of CPC is to be exercised judiciously, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant. Para 11 of the judgment read as under:-
"11. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing Page 40 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120], Karam Kapahi v. Lal Chand Public Charitable Trust (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] and Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha [(2010) 6 SCC 601 : (2010) 2 SCC (Civ) 745] .) There is no such admission in this case."
8.5. In addition to what has been sought before us Mr. Kamal Trivedi, learned Senior Advocate has also pinpointed the observations from two decisions delivered by Hon'ble Allahabad High Court and Calcutta High Court respectively and since relevant, we deem it proper to quote the observations hereunder:-
(1) In the case of Mahendra Radia & Television, Meerut & Anr., v. State Bank of India reported in 1988 SCC OnLine ALL 408 (paragraph 8) Page 41 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined "8. Admission can be by positive statement, by inference of circumstances, by absence of denial. It is the first category of admission where a party specifically admits a fact, which may in a given case be utilised by the other party, that in case permitted to be withdrawn it would completely displace that party from the position of advantage which it has achieved on account of such admission. Other admissions as aforesaid even if under the law it could be said to be an admission, it is always open to a party to explain such admission and the Court permitting such amendment could not be said to be acting beyond the scope of Order VI, Rule 17, C.P.C The scope under Order VI, Rule 17, C.P.C. is that the amendment should be permitted for the purpose of determining the real question in controversy between the parties. When a party in the earlier pleading has not specifically clarified his pleadings on facts and only facts are to be deducible by inference then if the proposed amendment dispels that state of uncertainty and clarifies the stand, such ah amendment should legitimately be permitted, so that dispute between the parties could be adjudicated with precision. Thus, the contention of the learned counsel for the respondent cannot be sustained. Admittedly, the various paragraphs under the first head did not specifically give pleading with precision leaving the matter to be deduced on the basis of records. In view of this, the trial Court committed error in not allowing such amendment of these paragraphs. What has been done in the proposed amendment is wherever the words "It is a matter of record" are sought to be deleted and the words "The contents of paragraphs, are not admitted" is sought to be incorporated. This is sought to be done in consonance with the principle of Order VIII, Rule 5, so that at a later stage while finally adjudicating the issue the suit on account of Page 42 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined lack of specific pleading the inference contrary to the case of applicant be not drawn. Thus, the refusal of the trial Court of such amendment in these various paragraphs was not justified."
(2). In the case of Bithi Chakroborty v. Indira Chatterjee & Ors., rendered in C.O. No. 1656 of 1986 decided on 23.09.1993 (paragraphs 12, 13 & 14).
"12. Mr. Banerjee has confined his argument mainly to Order 8 Rule 5. He has sedulously cultivated that the doctrine of non-traverse is to hold the filed in the background of the facts not being disputed in the original written statement. But I am not unmindful that amendment of the pleadings could be availed of at any stage and Order 8 Rule 5 can never be an insurmountable bar for amendment of the pleadings for the expressions used in Order 6 Rule 17, "at any stage of the proceedings". Therefore, Order 8 Rule 5 cannot govern Order 6 Rule 17.
13. Incidentally, if I glance at at the principle of law laid down in Panchdeo Narain Srivastava vs. Km. Jyoti Sahay, MANU/SC/0019/1983: AIR 1983 SC 462, it reveals that an admission made by a party may be withdrawn or may be explained away. Therefore, it is not legitimate to contend that exclusion or omission in the original written statement by the defendant could operate as an admission of fact which could never be withdrawn.
14. Mr. Banerjee is very much vocal that admission in the written statement if allowed to be withdrawn will place the plaintiff between the two horns. But, after going through the provisions of the several statutes, can it be said with a degree of precision that the original written statement comes within the fold of admission? According to Black's Law Dictionary, admission is the acknowledgement or recognition by one party of the truth of some matter Page 43 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined alleged by the opposite party, made in a pleading, the effect of which is to narrow the area of facts or allegations required to be proved by evidence. Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleadings. But the original written statement by the reason of its brevity was sought to be remedied after recourse to the Provisions of Order 6 Rule17 of the CPC."
9. In view of the aforesaid observations it appears that a case is made out by the petitioners and last in line, a recent decision delivered by the Hon'ble Apex Court in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited & Anr., reported in 2022 LiveLaw (SC) 729, wherein the issue relating to amendment is elaborated by Hon'ble Apex Court, reiterating the principle has concluded which final conclusion, we deem it proper to quote hereunder :-
61. In the case of B.K. Narayana Pillai v. Parameswaran Pillai & Anr., (2000) 1 SCC 712 relying upon the cases of A.K. Gupta (supra) and Ganesh Trading Co. (supra), this Court held that the court should adopt a liberal approach in the matter of amendment and only when the other side had acquired any legal right due to lapse of time, the amendment should be declined. It has been held as follows:
".....All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause Page 44 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement."
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(ii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided Page 45 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(iv) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(v) Where the amendment would enable the court to pin-pointedly consider the Page 46 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vi) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(vii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of Page 47 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)."
9.1. There are few decisions on the issue, but broad principle is in reiteration and as such, we do not incline to overburden the decision by quoting the same in the present order.
10. In consideration of the aforesaid proposition, Mr. Shukla, learned Senior Advocate has also pointed out certain decisions which we may consider before arriving at a final conclusion.
(1) In the case of Revajeetu Builders & Developers v. Narayanaswamy Sons & Ors., reported in (2009) 10 SCC 84 (paragraph 63) FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?Page 48 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."
(2) In the case of Badat & Co. Bombay v. East India Trading Co. reported in 1964 AIR SC 538 (paragraph
11) "11. Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written- statement, the particulars to be contained therein and the manner of doing so ; Rules 3, 4 and 5 thereof are relevant to the present enquiry and they read :
Page 49 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined "Order VIII Rule 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Rule 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he (1) (1927) 43 T.T.R. 541. received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Rule 5. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is Page 50 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined necessary. The first paragraph of Rule 5 is a re- production of O.XIX, Rule 13, of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do 'Justice between those parties, for which Courts are intended, the rigor of r. 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non- suitng the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the Justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildestey v. Harper(1) will be useful. There. in an action against a lessee to set aside the lease granted under a power the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under Page 51 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admit- ted. Fry J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows :
"The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met............ no fair and substantial answer is, in my opinion, given to the allegation of substance, namely that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhered to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court." (1) (1878) L.R. 7- Ch. D. 403.
It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances. The Bombay High Court, in Laxminarayanan v. Chimniram Girdhai Lal(1), construed the said provisions and applied them to the pleadings in a suit filed in the court of the joint Subordinate Judge of Ahmednagar. There the plaintiffs sued to recover a sum of money on an Page 52 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined account stated. For the purpose of saving limitation they relied in their plaint upon a letter sent by the defendant-firm. The defendants in their written statement stated that the plaintiffs's suit was not in time and that "the suit is not saved by the letter put in from the bar of limitation". The question was raised whether in that state of pleadings, the letter could be taken as admitted between the parties and, therefore, unnecessary to be proved. Batchelor, Ag. C. T., after noticing the said provisions, observed "It appears to us that on a fair reading of paragraph 6, its meaning is that though the letter put in by the plaintiff is not denied the defendants contend that for one reason or another its effect is not to save the suit from the bar of limitation. We think, there- fore, that...... the letter, Exhibit 33, must be accepted as admitted between the parties, and therefore, unnecessary to be proved."
The written statement before the High Court in that case was one filed in a court in the mofussil ; yet, the Bombay High Court implied the rule and held that the letter need not be proved aliunde as it must be deemed to have been admitted in spite of the vague denial in the written statement. 1. therefore, hold that the pleadings on the original side of the Bombay High Court should also be strictly construed, having regard to the provisions of rr. 3, 4 and 5 of Order VIII of the Code of Civil Procedure, unless there are circumstances wherein a Court thinks fit to exercise its discretion under the proviso to r. 5 of O.VII." (3) In the case of Sushil Kumar v. Rakesh Kumar reported in (2003) 8 SCC 673 (paragraph 71 "71. In paragraph 15 of the written statement, the respondent has not specifically contended that the statements made in paragraph 18 of the election Page 53 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined petition are incorrect or how they are so. Merely the said allegations have been denied as being imagination of the election petitioner without making a statement of fact that Rohit Kumar is not the elder brother of the respondent or in fact younger to him. Such an evasive denial attracts Order VIII, Rule 5 of the Code of Civil Procedure. The statements made in paragraph 18 of the election petition must, therefore, be deemed to have been admitted. The Birla Institute of Technology, Mesra, has produced the Application for Under-graduate Admission for Rohit Kumar, wherein his date of birth has been shown as 1.3.1979. Even in the inquiry made by the Chief Electoral Officer, the respondent had not specifically denied the said fact. The Governor of the State of Bihar in his order (Ext.4) observed :
"Sri Rakesh Kumar has not denied that his elder brother is a student of Birla Institute of Technology. Documents furnished by Birla Institute of Technology about the age of his elder brother are extremely significant and relevant to determine Shri Rakesh Kumar's likely age. The documents furnished by the Institute reveal that the date of birth of the elder brother of Sri Rakesh Kumar is 1.3.1979. Hence, on 19.5.99 Sri Rakesh Kumar's elder brother was 20 years, 2 months and 18 days old. So, it can be safely and conclusively assumed that on 19.5.99 Sri Rakesh Kumar, when he was sworn in as a minister, was less than 20 years, and definitely much less than 25 years, the qualifying age to become a member of the State Legislative Assembly."
(4) In the case of Suzuki Motors v. Suzuki (India) Ltd., reported in 2019 SCC Online Delhi 9241 (paragraphs 42, 44 & 45) Page 54 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined "Findings
42. The defendant denied the contents of paras 1, 3 to 18 and 24 of the plaint for want of knowledge. In para 26 of the plaint, the plaintiff specifically pleaded that the defendant adopted the name Suzuki as part of its corporate name and trading style which is dishonest, malafide and calculated to deceive and confuse traders and consumers alike. Since the trade mark Suzuki is a well recognized mark and registered in India since 1972, the trade mark registrations being matters of public record, the defendant is deemed to have constructive notice of the plaintiff€s statutory and exclusive right to use the trade mark Suzuki. The defendant has chosen not to specifically deny para 26 of the plaint which is deemed to have been admitted.
44. In para 28 of the plaint, the plaintiff specifically pleaded that the defendant's illegal adoption of the Suzuki mark without authorization from the plaintiff will also lead to undesirable and highly prejudicial consequences which will whittle down the reputation and goodwill attached to the plaintiff's trademark, which has been painstakingly developed at significant cost over the years by the plaintiff. The use of the Suzuki name by the defendant tarnishes the reputation and goodwill of the plaintiff and also dilutes the distinctiveness of plaintiff's mark and the exclusivity attached to it. The action of the defendant has caused and is likely to continue to cause grave and irreparable damage to the plaintiff. Para 28 of the plaint has also not been specifically denied by the defendant which is also deemed to have been admitted.
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45. Paras 26, 27 and 28 of the plaint are reproduced hereunder:
"26. The Plaintiff submits that the Defendant No.1€s adoption of the name "SUZUKI" as part of its corporate name and trading style is dishonest, malafide and calculated to deceive and confuse traders and consumers alike. Since the trademark "SUZUKI" is a well recognized mark and has been registered in India since 1972, the trademark registrations being matters of public record, Defendants Nos.1 - 3 are deemed to have constructive notice of the Plaintiff's statutory and exclusive right to use the trademark "SUZUKI".
27. The Defendants are also deemed to be fully aware of the use and goodwill of the mark SUZUKI by the Plaintiff because of the extensive use and publicity given thereto by the Plaintiff. Further, Defendant Nos.1 - 3 have no justification whatsoever for using SUZUKI as part of a corporate name context inasmuch (sic) as "SUZUKI" is a Japanese surname and it is not associated with any Indian name, place, object or term. Since Defendant No.1 has no connection with the Plaintiff, the use of the trademark SUZUKI by Defendant No.1, causes a misleading impression that Defendant No.1 is connected with the Plaintiff or that the Defendant No.1 has been licensed by the Plaintiff to use the name SUZUKI, which is false and untrue.
Deception and confusion is therefore inevitable. The confusion is greater since the Plaintiff also uses SUZUKI as part of its corporate name and trading style. The adoption of the SUZUKI name by Defendant Page 56 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined No.1 is therefore clearly dishonest and malafide with a view to encashing upon the widespread and invaluable goodwill, name and reputation attached to the Plaintiff's name and mark SUZUKI and to pass off and mislead the public that its business has some connection with the Plaintiff. This is further substantiated by the fact that Defendant Nos.1-3 have continued to retain defendant No.1 on paper, solely with the object of preventing the Plaintiff from using the same or similar name as part of the corporate name of a company in India and/or with the intention of either entering into business at a later date or with a view to infringing the Plaintiff's trademark and corporate name so as to encash on it at a later date by selling or offering to sell it to the Plaintiff or any other willing purchaser at a premium, thereby generating illegal profits, to the detriment of the Plaintiff.
28. Plaintiff submits that the Defendant Nos.1 - 3's illegal adoption of the SUZUKI mark without authorization from the Plaintiff will also lead to undesirable and highly prejudicial consequences which will whittle away the reputation and goodwill (sic) attached to the Plaintiff's trademark, which has been painstakingly developed at significant cost over the years by the Plaintiff. The SUZUKI mark/name is a symbol of superior quality goods with a high degree of selling power and is no longer confined to any particular classification or segment of goods. Whenever consumers come across the mark SUZUKI and/or an entity with the word SUZUKI as part of its trade name, they automatically take that entity to be associated with the Plaintiff. Thus, the use of Page 57 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined the SUZUKI name by the Defendant tarnishes the reputation and goodwill of the Plaintiff and also dilutes the distinctiveness of plaintiff's mark and the exclusivity attached to it. The actions of Defendant Nos.1 - 3 have caused and are likely to continue to cause grave and irreparable damage and injury to the Plaintiff. The Plaintiff believes that there is a real and tangible risk of Defendant No.1 commencing business and/or trying to sell its corporate to some other willing purchaser for a premium so that it can generate illegal profits." (5) In the case of Gautum Sarup v. Leela Jetly reported in (2008) 7SCC 85 (paragraphs 14, 16, 17, 22 &28) "14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore.
16. A thing admitted in view of Section 58 of the Indian Evidence Act need not be proved. Order VIII Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order XII Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom. The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them. Page 58 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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17. A Three Judge Bench of this Court speaking through Ray, CJ in Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1976) 4 SCC 320] opined :
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."
22. Hiralal (supra) has been recently noticed by this Court in Sangramsinh P. Gaekwar & Ors. v. Shantadevi P. Gaekwad (Dead) through LRs. & Ors. [(2005) 11 SCC 314], wherein it is stated :
"215.Admissions made by Respondent 1 were admissible against her proprio vigore. 216. In Nagindas Ramdas v. Dalpatram Ichharam this Court held :
"27. ... Admissions if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the Page 59 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined foundation of the rights of the parties. On the ot her hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
(See also Bishwanath Prasad v. Dwarka Prasad.)
217. In Viswalakshmi Sasidharan v. Branch Manager, Syndicate Bank this Court held :
"2. ... On the other hand, it is admitted that due to slump in the market they could not sell the goods, realise the price of the finished product and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service."
218. Judicial admissions by themselves can be made the foundations of the rights of the parties." Modi spinning (supra) and Hiralal (supra) were followed therein.
28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
10.1. Other decisions of different High Courts have also been brought to our notice, but we find that the peculiar background of this fact would be covered by broad proposition of law laid Page 60 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined down by the Hon'ble Apex Court in the decisions cited by Mr. Joshi, learned Senior Advocate appearing for the petitioners and as such, keeping in mind well recognized principle of application of precedent, we deem it proper to refrain from elaborating the said decisions and this is more so in view of the fact that it is settled position of law that if facts are different, even one additional fact may make world of difference in applying principle. The said observation contained in the decision in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639 , we deem it proper to quote hereunder :-
"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)"Page 61 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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11. In view of the aforesaid discussion and in consideration of the aforesaid proposition, we are of the clear opinion that since the effect of amendment which is sought by the petitioners is not taking away the entire stand which is tried to be projected before us, and as such, depriving the petitioners from insertion of such amendment in the written statement would not be justified. No doubt, the general rule is that party is not allowed to amend the pleadings for taking out altogether new case, but here is a case in which amendment does not constitute altogether a new case in any form, rather it is an extension of the stand which might be taken during the course of adjudication. Picking out few paragraphs from the written statement and to contend that the defendant is trying to resile from admission is not a case here, in fact, conjoint reading of entire written statement would in no way taking out any of the admission. It is settled position of law that Courts while deciding prayer with respect to amending the suit should not decide as hyper-technical approach and the technicality of law should not be permitted to hamper the Courts in administration of justice between the parties. On the contrary, if amendments Page 62 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined are allowed in the pleadings, same would have the effect of avoiding multiplicity of litigation. In fact, admission even if made by the defendant in his written statement, can be explained by filing an application for amendment and in fact in the decision in the case of Panchdeo Narain Srivastava vs Km. Jyoti Sahay And Anr. reported in 1984 Supp. SC 594. While considering the issue, the Hon'ble Apex Court has observed that admission made by the party may be withdrawn, or may be explained and the same is observed in paragraph 3 of the said decision. Here, in no uncertain terms, the amendment has got the effect of withdrawing of the stand taken, but what has been sought for is in the nature of addition of the pleading in the written statement and as such, keeping in view the observations made by Hon'ble Apex Court in paragraph 20 of its decision in the case of Usha Balashaheb Swami (supra) that amendment of written statement, the Courts are more liberal in allowing than that of plaint as the question of prejudice would be far less in the former than in the latter case and as such, keeping this salutary principle in mind in respect of amendment to be sought in written statement, as elaborately explained in Page 63 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined further paragraph of aforesaid decision, precisely in paragraphs 21 and 22, we are of the clear opinion that the order passed by the trial court deserves to be interfered with. The reasons assigned by the trial court appears to be not in consonance with the settled proposition of law and rather it is based upon misconstruction of stand which is being taken by the petitioners in respect of issue of amendment and as such, error material in nature which has been crept in the impugned order deserves to be corrected and this is more so in view of the fact that the suit itself is at a stage where issues are yet to be framed and as such, keeping the said stage of suit also in consideration, we are of the opinion that there may not be any harm or such prejudice which may result in miscarriage of justice and as such, keeping in mind the aforesaid decisions, we are of the opinion that a case is made out by the petitioners to call for an interference.
12. Considering the proposition of law, in consonance with the material placed before us, we are of the considered opinion that since the suit proceedings is at a stage where even issues have not been framed and the amendment is sought to be incorporated is not entirely taking away the assertions made in Page 64 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023 NEUTRAL CITATION C/SCA/9620/2023 CAV JUDGMENT DATED: 09/08/2023 undefined the written statement, allowing such amendment would not be so prejudicial at this stage which may prove to be fatal to the plaintiff. These pleadings which are forming part of the written statement even if amended which is being allowed, will be examined by the trial court at length, where both the side will be given an appropriate opportunity to meet with. Hence, since this being an amendment in the written statement, we are of the opinion that the same deserves to be allowed. It may be that the public record indicates that the original plaintiff has got registration of trademark AZURE with respect to goods and services, but the validity thereof may be questioned and whether the same would be considered or not in suit is depending upon the adjudication process of trial and as such, at this stage restraining petitioners from taking any plea by rejecting the amendment would be in considered opinion of this Court is not only improper, but contrary to the settled proposition of law. Even the effect of statutory provisions which have been brought to our notice can well be examined, but to thwart the process of amending the pleadings would be effecting injustice to the defendants from taking such plea. Page 65 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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13. Incidentally, we may also observe that the scope of Article 227 of the Constitution of India is not that much circumscribe that even if Court feels that the impugned order is unsustainable, the same can be ignored and on the contrary in our opinion, this is a fit case in which extraordinary jurisdiction deserves to be exercised in view of the aforesaid peculiar background of facts, which we have discussed herein-above.
14. In the context of the aforesaid discussion, and keeping in view the proposition of law in mind on the issue, the reasons assigned by the trial court are not germane to law and it appears that if the order is allowed to be sustained, same would result in miscarriage of justice. As said earlier, the original stand which is reflecting in the written statement is not completely to be wiped out under the guise of amendment, rather it is an extension of the defendants which will be again examined at length during the course of adjudication of the suit. If the reasons as assigned by the trial court to be sustained, the same may prove to be fatal to the petitioners. Page 66 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023
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15. Hence, under the circumstances, in view of the aforesaid discussion, the present petition stands allowed. The impugned order dated 04.05.2023 passed by the learned Commercial Court, City Civil Court, Ahmedabad on an application at Exhibit-92 (Annexure-A) in Commercial Civil Suit No. 533 of 2021 is hereby set aside.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) : FURTHER ORDER :
After pronouncement of the judgment, learned Senior Advocate Mr. Shukla appearing on behalf of contesting respondent has requested to suspend the operation of present order, so as to enable the respondent to approach higher forum.
Considering this request, we deem it proper to grant time of three (3) weeks' from today.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) phalguni Page 67 of 67 Downloaded on : Sun Sep 17 00:46:34 IST 2023