Delhi High Court - Orders
Vinay Aggarwal vs Rims Marketing Pvt. Ltd on 1 March, 2023
Author: Amit Bansal
Bench: Amit Bansal
$~5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 428/2017 & I.A. 11737/2019 (O-XXXIX R-2A of CPC), I.A. 16312/2019 (seeking modification of order dt. 13.02.2018), I.A. 4923/2021 (O-XI R-1(5) of CPC) VINAY AGGARWAL ..... Plaintiff Through: Mr. M. K. Miglani and Mr. Arpit Dudeja, Advocates versus RIMS MARKETING PVT. LTD. ..... Defendant Through: Mr. Navin Kumar and Ms. Nikita Rana, Advocates. CORAM: HON'BLE MR. JUSTICE AMIT BANSAL ORDER
% 01.03.2023 I.A. 10583/2022 (O-VI R-17 of CPC)
1. The present application has been filed on behalf of the plaintiff seeking leave to amend the plaint filed in the present suit.
2. Counsel for the plaintiff submits that the amendment is necessitated on account of subsequent registrations granted in favour of the plaintiff vide certificates number 2275283 dated 13th September, 2019 and 2419439 dated 12th March, 2020 respectively.
3. Counsel for the plaintiff draws attention of the Court to paragraph 9 of the plaint, where it has been specifically averred that the plaintiff had filed applications for the registrations of its trademark/label. Therefore, it is submitted that by way of the present application, the plaintiff only seeks to Signature Not Verified Digitally Signed By:AMIT BANSAL CS(COMM) 428/2017 Page 1 ofSigning 4 Date:03.03.2023 14:57:55 bring on record the subsequent registrations granted in favour of the plaintiff and the amendment sought is limited to the said registrations including addition of a prayer with regard to infringement of the said trademark/label.
4. Counsel for the defendant submits that by way of the present amendment, the plaintiff is seeking to change the nature of the suit from that of passing off to infringement. He further submits that the entire cause of action has arisen at a time when the plaintiff and the defendant were not the owners of the registered trademark/label and that the present application has been filed in a belated manner.
5. I have heard the counsels for the parties.
6. It is a matter of record that the issues in the suit were framed on 17th July, 2019. However, the first registration was granted in favour of the plaintiff on 13th September, 2019 and the subsequent registration was granted on 12th March, 2020. The plaintiff also filed his evidence by way of affidavit on 14th November, 2019. However, the same is yet to be tendered.
7. A perusal of the plaint shows that the plaintiff had specifically pleaded in paragraph 9 about filing of the aforesaid trademark/label registration applications. This suggests that a foundation for the same had been laid in the plaint by the plaintiff.
8. By way of the present application, the plaintiff only seeks to bring on record the subsequent events resulting in the registration being granted in favour of the plaintiff. Even though evidence has been filed on behalf of the plaintiff as noted above, the same is yet to be tendered and the cross examination is yet to take place.
9. The various objections of the defendant are with regard to the merits of the amendment, which cannot be seen at the stage of deciding the Signature Not Verified Digitally Signed By:AMIT BANSAL CS(COMM) 428/2017 Page 2 ofSigning 4 Date:03.03.2023 14:57:55 amendment application. The defendant can take the said objections in the written statement to be filed on behalf of the defendant to the amended plaint.
10. Counsel for the plaintiff has placed reliance on the judgment of the Coordinate Bench of this Court in Vatika Resorts Pvt. Ltd. v. Vatika Grand, 2009 SCC OnLine Del 498. In the aforesaid case also, the trademark VATIKA of the plaintiff was not registered on the date of filing of the suit and the said trademark was registered and assigned in favour of the plaintiff during the pendency of the suit. Relying upon the judgment of the Supreme Court in Rajesh Kumar Aggarwal and Ors v. K.K. Modi and Ors, AIR 2006 SC 1647, the Court allowed the amendment while observing that the evidence was yet to commence in the matter and that the merit of the case is immaterial while considering an application for amendment.
11. There is merit in the submission of the defendant that there has been delay in filing the present application, as the last of the registrations was granted in favour of the plaintiff on 12th March, 2020, whereas the present application has been filed only on 9th July, 2022. Counsel for the plaintiff submits that the delay is on account of onset of COVID-19 pandemic. Undoubtedly, there is a delay on the part of the plaintiff in filing the present application and the onset of COVID-19 pandemic cannot be a complete explanation for the same.
12. Accordingly, the amendment application is allowed, subject to payment of costs of Rs.10,000/- to Delhi High Court Bar Association Lawyers Social Security & Welfare Fund, New Delhi. I.A. 10447/2022 (O-XI R-1(5) & (12) of CPC)
13. In view of the amendment to the plaint being allowed, the present Signature Not Verified Digitally Signed By:AMIT BANSAL CS(COMM) 428/2017 Page 3 ofSigning 4 Date:03.03.2023 14:57:55 application filed under Order XI Rule 1(5) of CPC for placing on record registration certificates in respect of the subsequent registrations granted in favour of the plaintiff, is also allowed and the documents as mentioned in paragraph 4 of the application are permitted to be taken on record. CS(COMM) 428/2017
14. In view of the amendment to the plaint being allowed, written statement to the amended plaint be filed within thirty days.
15. Replication thereto, if any, be filed within fifteen days.
16. List before the Court for framing of issues on 3rd May, 2023.
17. It is clarified that the cost imposed on the defendant vide order dated 19th December, 2022 shall be paid to Delhi High Court Bar Association Employees Welfare Fund, New Delhi.
AMIT BANSAL, J
MARCH 1, 2023
sr
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
CS(COMM) 428/2017 Page 4 ofSigning
4 Date:03.03.2023 14:57:55