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2007 DIGILAW 1487 (DEL)

BOMBAY METAL WORKS (P) LTD v. R. S. INDUSTRIES

2007-07-26

SHIV NARAYAN DHINGRA

body2007
( 1 ) THIS application under O. 39 Rule 2-A read with O. 39 Rule 7 read with sections 2 (a), 11and 12 of the Contempt of Courts Act, 1971, has been made by the plaintiff alleging willful disobedience of, and non-compliance by defendant of the order dated 15. 5. 2006 of Division Bench of this Court and order of interim injunction granted by this Court. ( 2 ) IT is submitted that vide order dated 12. 2. 2002 this Court had restrained defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in cycle parts viz. ball head racer and screw racer in impugned packagings similar to the packagings of the plaintiff. Against this order defendants had preferred an appeal before the division Bench which was dismissed. Defendants on 20. 12. 2002 gave an undertaking to this Court that defendants were prepared to change the colour combination of the packagings. The statement was made in application No. CCP 169/2002 moved by the plaintiff. Despite this undertaking, defendants had not changed the pattern of its carton/ packages under which goods were being sold. Thus, plaintiff had to file two more contempt petitions. In all the contempt petitions the defendants gave undertaking that it shall stop using infringing packagings material. It is stated by applicant that in the second week of october 2006, it came to the knowledge of the plaintiff that the defendants were still selling the cycle parts in the packagings similar to that of the plaintiff. Plaintiff, therefore, has prayed that contempt proceedings should be initiated against defendant. ( 3 ) IN reply to the application defendants have not disputed the fact of the orders of this Court but has denied the allegations that defendants violated the order of the Court or violated the undertaking given by it or that the defendants were using packagings having similar colour combination as that of the plaintiff. ( 4 ) STRANGELY enough the plaintiff has not stated in the application as to who in October 2006 purchased the cycle parts of the defendants in the packagings similar to that of the plaintiff. There are no details how the plaintiff learnt about the violation of the order by the defendant. ( 4 ) STRANGELY enough the plaintiff has not stated in the application as to who in October 2006 purchased the cycle parts of the defendants in the packagings similar to that of the plaintiff. There are no details how the plaintiff learnt about the violation of the order by the defendant. A bald allegation has been made by the plaintiff that the defendants were still continuously using the same packagings without there being any iota of evidence, stated in the application or in the affidavit accompanying the application. Proceedings under O. 39 Rule 2a CPC and the proceedings under The Contempts of courts Act 1971 are serious in nature visiting serious consequences on the defendants and the Court cannot infer violation of its order lightly without there being any evidence. Some evidence of the violation must be placed on record e. g purchase of the material having same packing on a particular date by somebody, placing receipt of purchase on record etc. In absence of any material from which violation can be inferred, the court cannot even enquire into the fact whether order of the Court is violated or not. Mere attaching photographs of the packagings or packagings cartons, cannot be a ground to initiate proceedings under O. 39 Rule 2-A CPC. ( 5 ) APPLICATION is hereby dismissed.