Delhi District Court
M/S Nif Private Limited vs Shri Shyam Organics on 1 July, 2022
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-000766-2021.
CS (Comm) No. 33 of 2021.
M/s NIF Private Limited
Plot No.119-121,
Block P&T, Fazal Ganj,
Kalpi Road, Kanpur-208012 (U.P).
......................................................................................Plaintiff.
versus
1. Shri Shyam Organics
At : Namaste India Flour Mills,
Khacrod Road, Jaora,
Madhya Pradesh-457226.
Also At :
209/3, M.G.Road,
Behind Sugar Juice Center,
Indore, Madhya Pradesh-452002.
Also At :
Om Trading Janta Parisar,
Khachrod Road, Jaora,
Madhya Pradesh-457226.
2. Shri Shyam SDN. BHO.
Kuala Lumpur, Malaysia.
3. Indiamart Intermest Limited (deleted vide order dated 14.01.2022)
1st Floor, 29- Daryaganj,
Netaji Subhash Marg, Delhi-110002
...............................................................................................................Defendants.
CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 1 of 22 ::-
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Date of institution of the case through E-Filing : 19.01.2021.
Date of consideration of the case : 22.01.2021
Date of conclusion of the final arguments : 01.07.2022.
Date of judgment : 01.07.2022.
Appearances : Mr. Anil Kumar Sahu, Mr. Mohit Sharma and Ms. Shinkal Garg,
counsel for the plaintiff.
Defendant number 1 and 2 were proceeded ex parte vide order
dated 18.04.2022.
The name of defendant number 3 was deleted from the array of
the defendants vide order dated 14.01.2022.
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JUDGMENT
1. This is a suit under sections 134 and 135 of Trademarks Act, 1999 (hereinafter referred to as the TM Act) for permanent injunction restraining infringement; passing off; delivery up; rendition of accounts, etc., filed by M/s NIF Private Limited (hereinafter referred to as the plaintiff) against Shri Shyam Organics, Shri Shyam SDN. BHO and Indiamart Intermest Limited (hereinafter referred to as the defendants).
2. The plaintiff has filed the suit along with an application under order 39 rules 1 and 2 read with section 151 of the Civil Procedure Code (hereinafter referred to as the CPC) as well as application under order 26 rule 9 and order 39 rule 7 read with section 151 of the CPC for appointment of local commissioner.
3. The M/s NIF Private Limited, the plaintiff had filed the case initially against both the defendants namely Shri Shyam Organics and Shri Shyam CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 2 of 22 ::-
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SDN. BHO. Vide order dated 23.01.2021, the application of the plaintiff under order 1 rule 10 read with section 151 of the CPC and application under order 6 rule 17 read with section 151 of the CPC were allowed and Indiamart Intermesh Limited were permitted to be impleaded as defendant number 3 in the present case.
4. It has been averred by the plaintiff, in the amended plaint, that plaintiff is a company duly incorporated under the Indian Companies Act, 1956. In the year 2006, Mr. Manoj Gyanchandani, Mr. Rahul Gyanchandani and Mr. Rohit Gyanchandani started a partnership firm under the name and style NAMASTE INDIA and started business of advertisement, office function, business management etc. under trade name NAMASTE INDIA and adopted Trademark NAMASTE INDIA BAZAR. However, later on 20.02.2013, the NAMASTE INDIA Firm assigned the said trademark to the plaintiff vide duly executed deed of assignment. Further, on 26.10.2007, the partners of NAMASTE INDIA incorporated a new company by name M/s NAMASTE INDIA Retail Pvt. Ltd. with its registered office at 117/h-2/202, Pandu Nagar, Kanpur-208005 under the provisions of the Companies Act, 1956 with aim and object of doing business of afore-mentioned dairy products and for various other products and goods as fall under different class of trademarks. Thereafter, on several occasions the name of the plaintiff company was amended till 2013, wherein the name of the plaintiff company was changed to NIF Pvt. Ltd. and its registered office too was changed to Plot No. 119, 120, 121 Block P & T, Fazalganj, Kalpi Road, Kanpur-208012, which are the present name and registered official address of the plaintiff. The plaintiff CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 3 of 22 ::-
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company is a part of the well known RSPL group of companies. The parent company of the group, RSPL Ltd. started its primary business of manufacturing and marketing with its FMCG soap Brand GHARI with a single production unit. However, as on date, the group has progressed into having 27 successful manufacturing units which are now marketing leading FMCG brands by their own well organized distribution channels across the country. Apart from GHARI detergent and RED CHIEF shoes/sleepers, the group's other FMCG brands are; XPERT dish wash soap and VENUS bath and beauty soaps which are equally well known & successful brands. The group is expanding into construction/real estate. The dairy products and the retail chains by the name of NAMASTE INDIA BAZAR are also among much talked about and recognized store across various regions of the country. Presenting the total turnover of the group is more than 400 million US Dollar and it is still increasing trade mark/label/trade dress. Since the plaintiff was promoted by the partners of Namaste India Firm, the plaintiff with its incorporation on 27.10.2007 started using the trademark NAMASTE INDIA as its trademark and trade name for its business of procuring, processing and sale of milk and allied and cognate products and other products as fall under different class of Trademark (hereinafter referred to as said "goods/products & Services"). Thus, the plaintiff company adopted NAMASTE INDIA as its trademark as well as its trade name with and without DEVICE OF NAMASTE INDIA (herein after collectively referred to as "Said Trademark/label/trade dress") for its said goods and services. The said adoption of trademark and trade name NAMASTE INDIA is honest and bona fide and also with a view to distinguish its products from the similar CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 4 of 22 ::-
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and/or other allied and cognate products of others (hereinafter referred to as the said trade mark/labels/trade dress).
5. It has been further averred on behalf of the plaintiff that the plaintiff has honestly and bonafidely adopted and is using its above mentioned trade mark/label/trade dress NAMASTE INDIA as its trademark as well as its trade name with and without DEVICE OF NAMASTE INDIA and is the owner and proprietor of the same. The plaintiff, on account of honest, bonafide and prior adoption and continuous use of the said NAMASTE INDIA as its trademark as well as its trade name with and without DEVICE OF NAMASTE INDIA enjoys monopoly over the same. The plaintiff also displays its said product under the said trademark/Label/trade dress on its website www.namasteindiafoods.com.
The said trade label and colour combination are most essential part of the plaintiff's said packaging. The plaintiff has been continuously advertising and promoting its said trade mark/trade name/label NAMASTE INDIA through different means and modes including through print and electronic media i.e. by way of extensive advertisements in national newspapers, magazines and various prominent national TV channels, Radio Channels etc. The plaintiff has also been advertising the said trade mark/label through various other means like hoarding, display board, distribution of trade novelties, etc. The plaintiff has spent substantial amount of money on the publicity of the said trade mark/label/trade name. The plaintiff maintains very high quality for its product in terms of purity and nutrient value and its products are known for it. The people associate purity and its standard of product with the plaintiff trade mark/label/trade name CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 5 of 22 ::-
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NAMASTE INDIA. The products of the plaintiff are identified with special and unique trademark/ label /trade name NAMASTE INDIA which have acquired secondary significant for the products of the plaintiff. The said trade mark/label/trade name NAMASTE INDIA has acquired secondary significance denoting the goods and business of the plaintiff only. The public at large and trade associate, identify and distinguish the said trade mark/label/trade name NAMASTE INDIA with the plaintiff and plaintiff's Goods and business alone, in fact the said trade mark/ label/trade name have become well known within the meaning of provisions of section-2(1) (zg) and section-11 of Trade Mark Act, 1999.
6. It has been further averred on behalf of the plaintiff that the defendant number. 1 and defendant number 2 (as per memo of parties and to the plaintiff's knowledge) are engaged as manufacturers/traders/ suppliers/distributors and exporters in the similar and/or allied business of procuring /processing/ manufacturing, trading, selling, distributing and exporting of processed Wheat Flour (Atta) and other allied/cognate/related goods (hereinafter referred to as "the Impugned goods" and "impugned business"). However, the plaintiff is not aware of the exact composition of the defendants as to whether they are running their business as in their individual capacity or as proprietary firm or as a partnership firm or as a company and they are called upon to disclose the same upon causing appearance before this Court. Moreover, the said business is similar and allied and/or cognate to the business of the plaintiff.
CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 6 of 22 ::-
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7. It has been further averred on behalf of the plaintiff that the defendant Number 3 is India's leading an e-commerce website portal that connects B2C, B2B and customer to customer sales services via its web portal www.indiamart.com. The defendant number 3 has been impleaded as performa party for the purposes of executing the orders of this Court and the directions required against them are limited to the purpose as prayed under paragraph number 46 (C) of the plaint.
8. It has been further averred on behalf of the plaintiff that the defendant number 1 openly, continuously and extensively displaying, marketing and selling their impugned goods bearing impugned mark "NAMASTE INDIA" through the platform as provided by as provided by the defendant number 3 on its web portal through the weblink/URL https://www.indiamart.com/namaste-india-whole-wheat-flour/ (hereinafter referred to as "Impugned Weblink/URL").
9. It has been further averred on behalf of the plaintiff that the defendants with mala fide intent and to pass on its impugned goods/products as those of the plaintiff deliberately adopted the same and/or identical trademark "NAMASTE INDIA" (hereinafter referred to as "Impugned trademark") in relation to its impugned goods and business. The adoption of same and similar trademark cannot be except by deliberate and intentional copying of the well known trademark/label/trade name of the plaintiff. The impugned trademark of the defendants is same and/or identical to that of the plaintiff's aforesaid well known trademark/label/trade name. The impugned goods of the defendants are being sold at the same shops/trade CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 7 of 22 ::-
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channels where the similar and/or allied goods of the plaintiff bearing the aforesaid trademark/label/trade name are being sold. The same classes of purchasers are involved in purchasing the goods of the plaintiff and the defendants on the same counter of the market. Due to the impugned trademark of the defendants, the confusion and deception is being ensued in the market and the trade. By the impugned adoption and user, the defendants have passed off and also are passing off and enabling others to pass off and violate the plaintiff's proprietary rights in its said trademark/label/trade name. The defendants are also engaged in soliciting, advertising, promoting their impugned goods and business bearing the impugned trademark through all social media platforms, wherein the defendants are regularly and continuously posting about their impugned goods and business bearing the impugned trademark 'NAMASTE INDIA' via posts on various social media handles such as facebook, instagram, twitter etc. Further, the defendants are also promoting/advertising the said impugned goods and business through YouTube viz, https://www.youtube.com/twatch?v=oWQhDH7AKBc. In addition to the aforesaid impugned activities, the defendants are also the owner and creator of impugned pages bearing the impugned trademark on various social media handles i.e., Facebook, Instagram, Twitter wherein, the defendants are promoting/advertising the impugned trademark worldwide without the leave and license of the plaintiff and without being the original creator of the impugned trademark and therefore the impugned activities of the defendants are causing irreparable losses to the plaintiff, owing to the reason that the impugned goods and business of the defendants will be considered as an extension to the trade and business of CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 8 of 22 ::-
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the plaintiff's business buy the mass. By impugned adoption and use of the impugned trademark/label/trade dress in relation to impugned business and goods, the defendant is further guilty of infringing the registered trademark/label/trade dress of the plaintiff.
10.It has been further averred on behalf of the plaintiff that the defendant numbers 1 and 2 are not the proprietor of the impugned trademark and have adopted and are so using the same as a trademark/label in relation to its impugned goods and business and are otherwise dealing with it in the course of trade without the leave and license of the plaintiff. The defendants have no right to use it in any manner in relation to its impugned goods and business or for any other specification of goods and business whatsoever being in violation of the plaintiff's rights therein. The dishonesty of the defendants is apparent from bare perusal of trademark/label of both the parties. The defendants are fully aware or ought to be aware of the plaintiff's rights, goodwill, reputations, benefits and users etc. in the plaintiff's said trademark/label/trade name at the time of impugned adoption and use of the impugned trademark. The defendants are called upon to explain as to how they hit upon the impugned trademark. The defendants impugned adoption and user thereof is tainted at inception and is a pirate use. The impugned adoption of the impugned trademark by the defendant numbers 1 and 2 is dishonest. The defendant number 1 and 2 have adopted and started using the impugned trademark dishonestly, fraudulently and out of positive greed with a view to take advantage and to trade upon the established goodwill, reputation and proprietary rights of the plaintiff in the plaintiff's said CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 9 of 22 ::-
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trademark/label/trade name. The impugned goods of the defendants under the impugned trademark are of sub standard and poor quality. Due to the impugned user, the tremendous goodwill and reputation of the plaintiff's said trademark/label/trade name is being seriously diluted and eroded. By the impugned adoption and use by defendant numbers 1 and 2, deception and confusion in the market is ensuing or is likely to so ensue. The impugned adoption and user by the defendant numbers 1 and 2 are dishonest, tainted, mala-fide and fraudulent. The defendant numbers 1 and 2 were fully aware or ought to be aware of the plaintiff's rights, users and reputation of the plaintiff in the plaintiff's said trade mark/label/packaging/trade dress, at the time of their impugned adoption and user of the impugned trade mark/label/packaging/trade dress. In the last week of December, 2020, the plaintiff came across the impugned goods of the defendant numbers 1 and 2 under the impugned trade mark.
Being aggrieved of the impugned adoption, the plaintiff launched inquires through the trade to ascertain the defendants' activities under the impugned trade mark, which revealed that the defendants have very recently started the impugned activity under the impugned trade mark. The defendants' user thereof (if any) at most would be clandestine, surreptitious, sporadic, restricted, minimal and very recent, making it very difficult to detect and verify the precise nature of the defendants' activities. The defendants' impugned user, if any, is void-ab-initio. Due to the impugned activities of defendant numbers 1 and 2, the plaintiff is suffering tremendously in business and goodwill and the plaintiff's said proprietary rights are being reduced to a nullity and being violated. Therefore, the present suit has been filed by the plaintiff as it is aggrieved CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 10 of 22 ::-
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due to the misconduct of the defendants. The defendant numbers 1 and 2 are infringing the trademark/label/trade name NAMASTE INDIA of the plaintiff.
11. The case and claim of the plaintiff has been elaborated in the paragraphs numbers 1 to 46 of the plaint and the role and misconduct of the defendants have been elaborated in paragraphs numbers 26 to 42 of the plaint. The main grievance of the plaintiff is voiced in paragraphs numbers 27 to 42. of the plaint. The cause of action and the jurisdiction (territorial and pecuniary) have been detailed in in paragraphs numbers 43, 44 and 45 respectively of the plaint.
12.The plaintiff, in its prayer elaborated in paragraph number 35 of the plaint, has prayed as follows :
a passing a decree of permanent injunction restraining the defendants by themselves as also through their individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on their behalf from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned trade mark NAMASTE INDIA or any other trade mark/label which may be identical with and/or deceptively similar to the plaintiff's trademark/label/trade name NAMASTE INDIA in relation to their impugned goods and business of Wheat Flour (Atta) and other allied/cognate/related goods or from doing any other acts or deeds amounting to or likely to:
CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 11 of 22 ::-
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i infringing the plaintiff's registered trademark/label/trade name NAMASTE INDIA.
ii passing off their goods and business as that of the plaintiff in violation of the plaintiff's rights in the plaintiff's said trademark/label/trade name.
(iii) not only that the defendants are further guilty of falsification and unfair and unethical trade practices.
b Restraining the defendants from disposing off or dealing with their assets including their premises at the addresses mentioned in the Memo of Parties and their stocks- in-trade or any other assets as may be brought to the notice of the Court during the course of the proceedings and on the defendants disclosure thereof and which the defendants are called upon to disclose and/or on its ascertainment by the plaintiff as the plaintiff is not aware of the same as per Section 135 (2) (c) of the Trade Marks Act,1999 as it could adversely affect the plaintiff's ability to recover the costs and pecuniary reliefs thereon.
c directing the defendant no.3 to permanently take down, suspend, remove, cancel or block/restrict access (from country domain) to the impugned trademark/label, as advertised and/or soliciting and/or offering for sale on the impugned website/weblink/URL https://www.indiamart.com/namaste-india-whole-wheat-flour/, of the defendant No.1 and to further direct the defendant no.3 to disclose the true identity and/or contact details of the defendant No.1 for the purpose of proper and effective compliance of the orders of this Court.
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a passing an order for delivery up of all the impugned finished and unfinished materials bearing the impugned and violative mark/label or any other word/mark which may be identical with or deceptively similar to the plaintiff's said trade mark/label including its blocks, labels, display boards, sign boards, trade literatures and goods etc. to the defendants itself on Superdari for the purposes of showing and/or presenting them before this Court whenever the need arises for the adjudication of the present matter.
b passing an order for rendition of accounts of profits earned by the defendants by their impugned illegal trade activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts.
c passing an order for cost of proceedings, and d for such other and further order as this Court may deem fit and proper in the facts and circumstances of the present case.
13.I have heard the arguments at length and have given my careful thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
14.The copies of legal proceedings certificates have already been filed along with the plaint and are at page no. 111 onwards.
15.Vide order dated 25.01.2021, the ex parte injunction was granted in favour of the plaintiff and against the defendants and matter was listed for CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 13 of 22 ::-
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issuance of summons and notice of the application XXXIX rules 1 and 2 read with section 151 of the CPC to the defendant. The application of the plaintiff under order 26 rule 9 and order 39 rule 7 read with section 151 of the CPC for appointment of local commissioner was allowed and the local commissioner was appointed to seize the impugned goods/materials from the premises of the defendant number 1.
16.On18.02.2021 the memo of appearance had been filed on behalf of defendant number 1 and 2. The memo of appearance had also been filed on behalf of defendant number 3. The counsel for the defendant number 3 had submitted that the listing of defendant number 1 on the portal of defendant number 3 had already been removed and he had sought time to file the relevant affidavit along with power of attorney (POA/vakalatnama) on behalf of defendant number 3. The report of the local commissioner has also been received in the Court in a closed cover.
Matter was adjourned for settlement between the plaintiff and defendant number 1 and 2.
17.On 23.03.2021, the power of attorney (POA/vakalatnama) on behalf of defendant number 3 was filed along with application under order VII rule 11 CPC and application under order XXXIX rule 4 of CPC. The counsel for the defendant number 3 had submitted that she shall be filing an affidavit of the authorized representative of the defendant number 3 regarding de-listing of the URL/listing of defendant number 1 from the portal of defendant number 3 and the name of the defendant number 3 may be deleted from the array of the defendants. The counsel for the CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 14 of 22 ::-
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plaintiff had sought time to verify the submission of defendant number 3 and requested that defendant number 3 may furnish the particulars/details of the subscribers who are infringing the rights of the plaintiff.
18.On 01.09.2021, the counsel for the plaintiff had filed an application under order 39 rule 2A CPC read with section 151 CPC for initiating contempt proceedings against the defendant/contemnor number 1 and 2. The counsel for the defendant numbers 1 and 2 had moved an application under section 151 of the CPC for replacing the authorized representative and same was allowed. Ms. Khusboo Soni was substituted as authorized representative of the defendant number 1 and 2 in place of late Mr. Anupam Soni.
19.As elaborated in the order dated 30.10.2021, the counsel for the plaintiff had already filed an application on 25.10.2021 under order XIII-A rule 3 CPC read section 151 CPC. The counsel for defendant numbers 1 and 2 had filed the reply to the application of the plaintiff under order 39 rule 2A CPC read with section 151 CPC for initiating contempt proceedings.
The proxy counsel for the defendant number 3 had submitted that the defendant number 3 is an intermediary party in this case and he had already filed affidavit regarding de-listing of the URL/listing of defendant number 1 from the portal of defendant number 3 in compliance of the Court order. On request of the plaintiff and defendant number 1 and 2, the matter had been sent to the Mediation Centre as parties want to settle the matter.
CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 15 of 22 ::-
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20.It was reported that the defendant number 1 and 2 had appeared for the first time on 18.02.2021. The written statement on behalf of defendant number 1 and 2 had been filed on 19.04.2021. The affidavit of admission and denial of document and statement of truth had not been filed till 01.12.2021.
21.Vide order dated 14.01.2022, as the defendant number 3 had complied with the order dated 25.01.2021 and filed its affidavit of compliance, the name of the defendant number 3 was deleted from the array of the defendants. Amended memo of parties was ordered to be placed on record within three working days by the plaintiff.
22.On 30.03.2022 it is reported that the report of the Mediation Centre had been received with the report that the matter "Not Found Fit".
23.On 18.04.2022, despite having waited till 02:23 pm and despite several calls since morning, none appeared on behalf of the defendant numbers 1 and 2 and they were proceeded ex parte.
24.The ex parte evidence has not been recorded, as elaborated in the order dated 18.04.2022, in terms of the judgments of the hon'ble High Court of Delhi in Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226. It was observed therein that where the plaint has been verified and also supported with the CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 16 of 22 ::-
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affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightaway and the judgment is to be passed on the basis of the material on record.
25.I have heard the arguments at length and have given my careful thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
26.I have also carefully perused the certificate of fees which is for an amount of Rupees Two Lacs, Forty Six Thousand and Seventy Six only (Rs.2,46,076/-) and the certificate of expenses which is for an amount of Rupees Five Thousand, Four Hundred and Forty One only (Rs.5,441/-).
27.The defendants numbers 1 and 2, before being ex parte vide order dated 18.04.2022, have filed their written statement on 19.04.2021 but the affidavits of admission and denial of document and the statements of truth have not been filed within the stipulated period of 30 days from their service and even upto 120 days from the date of their service along with an application for condonation of delay.
28.The averments made in the plaint (which is supported with the affidavit and statement of truth) remain uncontroverted, unrebutted and unchallenged and can be presumed to be admitted as correct, as the defendant numbers 1 and 2, which are ex parte, failed to appear before the Court, failed to file the CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 17 of 22 ::-
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statements of truth, affidavits of admission and denial of documents of the plaintiff and failed to file their own documents as well as any application for condonation of delay within the stipulated period from the date of their service. The defendant numbers 1 and 2 have failed to contest the case or put up any defence.
29.In the judgment of the hon'ble High Court of Delhi in the case of M/s Ok Play India Pvt Ltd v. M/s A P Distributors & Anr, CM(M) 346/2020, CM APPL. 10013/2020 (by the petitioner u/s 151 CPC for stay), decided on 17.08.2021 it has been held that written statement has to be filed alongwith the statement of truth, affidavit of admission and denial of the documents, documents as well as any application for condonation of delay, if the written statement has not been filed within a period of 30 days and 120 days have yet not lapsed.
30.The review was filed against the judgment reported as M/s Ok Play India Pvt Ltd v. M/s A P Distributors & Anr, CM(M) 346/2020, CM APPL. 10013/2020 (by the petitioner u/s 151 CPC for stay), decided on 17.08.2021 and the same was dismissed with costs vide judgment dated 25.10.2021 in the matter titled as M/s O.K Play India Pvt Ltd v. A.P Distributors and anr. 2021 SCC OnLine Del 4809 and it was observed as follows:-
"With regard to the directions of this Court in the judgment dated 17 th August, 2021 in para no.13 to the learned Commercial Court to consider the Course of action under order VIII Rule 10 CPC, the same reflect no error. The orders that can be passed under order VIII Rule 10 are "in relation to the suit" as to pronounce judgments or make further orders. This would be sufficient to CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 18 of 22 ::-
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enable the learned Commercial Court to exercise its discretion under order VIII Rule 5 CPC, if it is so desired.
31.In terms of the judgment of the hon'ble High Court of Delhi in the case of Cosco International Pvt Ltd v. Jagat Singh Dugar, CS(Comm) 1052/2018, date of decision 06.04.2022, the defendants are to be given an opportunity to cure the defects. However, in the present case, defendant numbers 1 and 2 have failed to appear and were proceeded ex-parte and have not cured the defects in the written statement due to which their written statement can not be taken into consideration.
32.As such, the Court shall be within its discretion to pronounce the judgment against such defendant which is as per law under order VIII rule 10 of the Civil Procedure Code (hereinafter referred to as the CPC) which reads as follows:
"In case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn".
33.There is no reason to disbelieve the averments made in the plaint (supported with statement of truth and affidavit) and the relevant documents which have been filed along with the plaint. The contents of the plaint and documents on record appear to be of an unimpeachable character. This appears to be a clear case of negligence and inaction on part of the defendant numbers 1 and 2 as they have failed to appear before the Court to contest the case.
34.The averments made in the plaint remain uncontroverted, unrebutted and unchallenged as the defendant numbers 1 and 2, which are ex parte, failed to CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 19 of 22 ::-
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appear before the Court and contest the case. All the relevant documents have been filed along the plaint.
35.As regards the prayer elaborated in paragraph number 46 (a) and (b) of the amended plaint as well as (c) on page number 33 of the amended plaint (wrongly numbered as "c" for the second time), the plaintiff has been able to show with the contents of the plaint, documents annexed, etc. that it is entitled to reliefs against defendant numbers 1 and 2.
36.As regards the prayer elaborated in paragraph number 46 (c) on page number 32-33 of the amended plaint, defendant number 3 has already complied with the same and also filed the affidavit of compliance. Therefore, no orders as such are required.
37.As regards the prayer elaborated in paragraph number 46 (e) of the plaint, the attorney fees and expenses of the suit are being taken into consideration.
38.As regards, the prayer elaborated in paragraph number 46 (d) of the plaint regarding rendition of accounts of profits earned by the defendant numbers 1 and 2, the same has not been pressed and has been disposed off accordingly, as mentioned in today's order sheet i.e. 01.07.2022
39.Consequently, this commercial case is hereby decreed in favour of the plaintiff and against the defendant numbers 1 and 2 in terms of the prayer, as elaborated in paragraph number 46 (a) and (b) of the amended plaint as well as (c) on page number 33 of the amended plaint (wrongly numbered as CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 20 of 22 ::-
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"c" for the second time) of the instant suit.
40.Further, as regards the costs and expenses, in terms of the prayer, as elaborated in paragraph number 46 (e) of the plaint, as the plaintiff has filed the certificate of fees and the certificate of expenses, the same are being taken into consideration and the defendant numbers 1 and 2 are also liable to pay the same to the plaintiff.
41.The plaintiff has filed the certificate of fees for an amount of Rupees Two Lacs, Forty Six Thousand and Seventy Six only (Rs.2,46,076/-) and the certificate of expenses for an amount of Rupees Five Thousand, Four Hundred and Forty One only (Rs.5,441/-).
42.Further, towards the costs and expenses, as the certificate of fees for an amount of Rupees Two Lacs, Forty Six Thousand and Seventy Six only (Rs.2,46,076/-) has been filed on behalf of the plaintiff, the defendant numbers 1 and 2 is also liable to pay the fees of the counsel for the plaintiff, as per the provisions regarding the fees of the counsel, as provided in the High Court of Delhi Rules.
43.Also, towards the costs and expenses, as the certificate of expenses for an amount of Rupees Five Thousand, Four Hundred and Forty One only (Rs.5,441/-) has been filed by the plaintiff, the defendant numbers 1 and 2 are also liable to pay the same i.e. Rupees Five Thousand, Four Hundred and Forty One only (Rs.5,441/-).
44.Accordingly, the case is hereby decreed in favour of the plaintiff and against the defendant numbers 1 and 2 in terms of the prayer, as CS (Comm) No. 33 of 2021. M/s NIF Private Limited v. Shri Shyam Organics & another. -:: Page 21 of 22 ::-
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elaborated in paragraph number 46 (a) to (c) of the instant suit; and costs and expenses i.e. the fees of the counsel for the plaintiff, as per the provisions regarding the fees of the counsel, as provided in the High Court of Delhi Rules and Rupees Five Thousand, Four Hundred and Forty One only (Rs.5,441/-).
45.The defendant numbers 1 and 2, jointly and severally, are liable to make the payment of the above stated amounts in favour of the plaintiff.
46.The decree sheet be prepared accordingly. The prayer, as elaborated in paragraph number 46 (a) and (b) of the amended plaint as well as (c) on page number 33 of the amended plaint (wrongly numbered as "c" for the second time) of the instant suit shall also be part of the decree sheet.
47.In compliance to the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up to date by the Commercial Courts Act, 2015), a copy of the judgment be issued to both the parties to the dispute through electronic mail, if the particulars of the same have been furnished or otherwise.
48.After completion of formalities, the Junior Judicial Assistant/Ahlmad of the Court shall consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA)
on this 01st day of July, 2022. District Judge
Commercial Court-01,
Shahdara, Karkardooma Courts,
Delhi. 01.07.2022.
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