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11 First defendant had entered appearance and presented a written statement on 22.03.2018 along with four documents. However, even prior to 22.03.2018, the instant application being A.No.1948 of 2018, seeking rejection of plaint inter-alia under Order VII Rule 11 of CPC had been filed, arraying sole plaintiff as lone respondent, sole plaintiff has filed counter affidavit in A.No.1948 of 2018 and this counter affidavit is dated 20.3.2018. http://www.judis.nic.in 12 The sum and substance of first defendant's plea is that the first defendant has obtained registration of trade mark 'Idhayam' in USA. Therefore, first defendant is entitled to use the trade mark 'Idhayam' in USA. However, plaintiff assailed the registration of first defendant's mark 'Idhayam', sought cancellation of the same in the Patent and Trade Mark office in USA, but such petition by plaintiff for cancellation was dismissed by order dated 15.07.2015. Plaintiff carried it further to the United States District Court, Eastern District of California in USA, which did not accede to the prayer for cancellation vide order dated 13.02.2017. After all these proceedings in USA, plaintiff suppressing these proceedings has presented the instant suit in this Court on 14.09.2017, as plaintiff was unsuccessful in the proceedings in USA and instant suit therefore is a case of relitigation.

13 It is the sheet anchor submission of first defendant that this is nothing but blatant relitigation. It is the specific case of first defendant that plaintiff after unsuccessfully assailing the registration of trade mark 'Idhayam' by first defendant in USA, has suppressed the proceedings in the trade mark Registry in USA as well as in the Eastern District Court, California and filed this suit in this Court and therefore, besides relitigation, the plaint is also liable to be rejected on the ground of suppression.

15 In response to this, learned Senior Counsel for first defendant submitted that besides Order VII Rule 11 CPC, the application shall also be treated as one under Order VI Rule 16 of CPC, as relitigation has been held to be a serious ground, for striking out such pleadings by Hon'ble Supreme Court in K.K.Modi case, being K.K.Modi Vs. K.N.Modi and others reported in (1998) 3 SCC 573. Besides this, it was also highlighted that this Commercial Division has powers under Order XIII-A of CPC to pass summary judgment before recording oral evidence if a party to the lis is able to demonstrate that it's adversary has no real chance of succeeding in its claim or defending the claim when there are no other compelling reasons as to why such summary judgment (before recording oral evidence) should not be passed. It is in the aforesaid backdrop that this matter was heard.

17 A careful consideration of aforementioned submissions reveals that there is no explanation whatsoever as to why plaintiff has not disclosed the legal proceedings in USA seeking cancellation of trade mark registration. In this regard, a chronicle, i.e., chronology of dates also assumes significance. While registration in USA was granted to first defendant on 02.08.2011, cancellation application by plaintiff was negatived by trade mark registry on 15.7.2015 and order of Eastern District Court of California was passed on 13.02.2017, the plaint has been presented in the instant court close on the heels of the order of the Court in California, i.e.., in six months, on 14.9.2017. In other words, registration was obtained by first defendant on 02.08.2011 itself and proceedings for cancellation of the mark were initiated http://www.judis.nic.in by plaintiff thereafter and the same was unsuccessful on 15.7.2015 itself, but the plaintiff waited till the order of Eastern District Court on 13.02.2017 and has filed the instant plaint suppressing these proceedings. Therefore, the submission of learned Senior counsel for first defendant that it is a clear case of relitigation qua K.K.Modi principle laid down by Hon'ble Supreme Court cannot be brushed aside lightly. On the contrary, it has to be viewed with all seriousness.