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2018 DIGILAW 1516 (RAJ)

Lotus Organic Care v. Aadhar Products Pvt. Ltd.

2018-07-18

ARUN BHANSALI

body2018
ORDER : This revision petition under Section 115 CPC is directed against the order dated 7/7/2018 passed by the learned Addl. District Judge, No. 1, Udaipur Camp Mavli, whereby, the application filed by the petitioner under Order VII Rule 11 CPC has been rejected. The respondent-plaintiff filed a suit for permanent injunction against the petitioners with the averments that the plaintiff company was involved in manufacturing and distribution of various detergent products and cleaning preparations since 2006 and was inter alia manufacturing and distributing washing powder in the name of “Decide”. It was claimed that the said product has attained popularity and credibility with the consumers within Udaipur, Bhilwara, Banswara, Kota, Chittorgarh and Marwar etc. areas and that it was having its own specific and unique packaging. The Trade Mark, Design and colour combination of the plaintiff company are registered under the provisions of Trade Marks Act, 1999 (‘the Act, 1999’) and the Copyright Act, 1957 (‘the Act, 1957) and, therefore, the right of its exclusive use vests in the plaintiff company. It was alleged that the petitioners have been using a deceptively similar mark as of the plaintiff company in the name of “Delight”, which has resulted in violation of right of the plaintiff company regarding its exclusive use of the Trade Mark. It was inter alia indicated that defendants have recently started its production and plaintiff came to know about it on 10/4/2018 when the plaintiff company received copies of the tax invoices issued by the defendants. Based on the said allegations, permanent injunction was sought against the defendants regarding using of deceptively similar name of its registered Trade Mark “Decide” and sought delivering-up of the infringing labels and marks. Along with the suit, an application seeking temporary injunction was also filed. The petitioners filed reply to the temporary injunction application and also filed an application under Order VII Rule 11 CPC seeking rejection of the plaint. In the application seeking rejection of the plaint, it was alleged that no part of cause of action has arisen within the territorial jurisdiction of the court; the cause of action under the Act of 1999 and Act of 1957 were different and no composite suit was maintainable; the plaintiff has not approached the court with clean hands and has suppressed material facts and the suit was barred by limitation. It was indicated that the averments made pertaining to plaintiff coming to know of the production by the defendants on 10/4/2018 were false and baseless. The plaintiff company itself had lodged FIR on 11/5/2013 regarding which challan was filed and against framing of charges, the High Court has granted stay on 8/10/2015 in which the counsel for the plaintiff company was appearing. The proceedings are pending before the competent authority pertaining to Trade Mark and, the suit was barred by limitation having been filed beyond the period of three years from the date of knowledge. It was prayed that the plaint be rejected. The plaintiff responded to the application. The allegations pertaining to lack of territorial jurisdiction were denied. It was submitted that the suit can be maintained at a place where the plaintiff company was engaged in its business. Further submissions were made that the proceedings regarding which reference has been made by the defendants were taken up against M/s. Lotus Organ Corporation situated at Mewar Industrial Area, Udaipur and the defendants by changing name of the firm to M/s. Lotus Organic Care and changing its place of business to RIICO Growth Centre, Bhilwara has started its business, which fact came to the notice of the plaintiff on the date indicated in the plaint and that the proceedings initiated earlier/pending have no relation insofar as the defendant entity was concerned. Further submissions made in the application were denied and it was prayed that the application be rejected. The Trial court after hearing the parties on the application filed under Order VII Rule 11 CPC came to the conclusion that from the reading of the plaint it cannot be said that the plaint does not disclose any cause of action. On the issue of limitation raised by the defendants, it was held that at the stage of deciding the application, from a perusal of the plaint it cannot be said that the suit was barred by limitation as the plaintiff has claimed knowledge on 10/4/2018. Further, regarding territorial jurisdiction, it was held that in view of provisions of Section 62 (2) of the Act of 1957, a suit could be instituted where the plaintiff actually and voluntarily resides or carries on business or personally works for gain and, therefore, it cannot be said that the court lacked territorial jurisdiction. Further, regarding territorial jurisdiction, it was held that in view of provisions of Section 62 (2) of the Act of 1957, a suit could be instituted where the plaintiff actually and voluntarily resides or carries on business or personally works for gain and, therefore, it cannot be said that the court lacked territorial jurisdiction. Ultimately, the trial court held that the issues sought to be raised in the application cannot form subject matter of an application under Order VII Rule 11 CPC and that the objections sought to be raised can be raised in the written statement and consequently rejected the application. It is submitted by learned counsel for the petitioners that the trial court committed grave error in rejecting the application filed by the petitioners. It was contended that a bare look at the plaint would indicate that the plaintiff has failed to claim any declaration regarding defendants’ Trade Mark, design of the packaging etc. being deceptively similar and in absence of such a declaration, simple suit for injunction was not maintainable. Further submissions have been made that suit was ex-facie barred by limitation. With reference to several documents filed along with the revision petition, it was submitted that an absolutely false plea regarding the plaintiff coming to know of the alleged infringement on 10/4/2018 was made in the plaint. It was submitted that the plaintiff was well aware of the fact that the petitioner-defendants were engaged in the business since long and in fact it had earlier initiated proceedings against the petitioners by filing FIR way back in the year 2013, though the proceedings arising from the said FIR after filing of the challan have been stayed by this Court. It was submitted that in view of the fact that plea raised regarding knowledge on 10/4/2018 is ex-facie incorrect and the criminal proceedings having been initiated way back in the year 2013, the suit was barred by limitation and, therefore, the plaint was liable to be rejected. It was submitted that the trial court has not taken into consideration any of the above aspects and cursorily rejected the application, which requires interference by this Court. Learned counsel appearing on caveat vehemently opposed the submissions. It was submitted that action of the petitioners in filing the application is wholly malafide to continue to indulge in gross infringement of the plaintiff’s registered Trade Mark and Copyright. Learned counsel appearing on caveat vehemently opposed the submissions. It was submitted that action of the petitioners in filing the application is wholly malafide to continue to indulge in gross infringement of the plaintiff’s registered Trade Mark and Copyright. It was submitted that besides the fact that while deciding the application under Order VII Rule 11 CPC, the defense of the defendants cannot be looked into; several documents which have been filed along with the present revision petition do not even form part of the record and, therefore, the plea raised based on the said documents cannot even be looked into. It was also submitted that the contention about the suit being barred by limitation is baseless, the plaintiff has given specific date regarding it getting aware of the infringement i.e. 10/4/2018 and the suit has been filed immediately thereafter and, therefore, from the reading of the plaint it cannot be said that the same is barred by limitation. With respect to plea raised regarding criminal proceedings initiated by the plaintiff, it was submitted that the petitioners are indulging in hide and seek as when proceedings were initiated against the petitioner No.2, he was working under the name and style of M/s. Lotus Organ Corporation having its place of business at Udaipur, the same has now been got changed to M/s. Lotus Organic Care and place of business has also been changed from Udaipur to Bhilwara and, therefore, the action initiated by the plaintiff against M/s. Lotus Organ Corporation cannot be used by the petitioners for claiming the plaint to be barred by limitation. It was submitted that the entire effort of the petitioners is to somehow ensure that temporary injunction application filed by the plaintiff is not taken up by the trial court and, therefore, the revision petition deserves to be dismissed. I have considered the submissions made by the learned counsel for the parties and have perused the material available on record. Insofar as the submissions made by learned counsel for the respondent regarding certain documents having been filed in the present revision petition, which do not form part of the record of the trial court, are concerned, the said submission has not been denied by the learned counsel for the petitioners and, therefore, none of those documents can be taken into consideration. The plea raised by the petitioners regarding lack of claiming declaration in the plaint and, therefore, simple suit for injunction being not maintainable has no substance inasmuch as the suit of the present nature is covered by the provisions of Sections 134 & 135 of the Act of 1999 and Section 55 of the Act of 1957,which deals with suit for infringement and civil remedies for infringement of Copyright, respectively. The very fact that averments have been made pertaining to infringement of Trade Mark/Copyright in the plaint, the said plea necessarily inheres determination by the court pertaining to fact as to whether infringement as such has taken place or not and, therefore, there is absolutely no necessity of seeking an independent declaration regarding infringement, as contended by the learned counsel for the petitioners and, therefore, the plea raised in this regard has no substance. So far as the arguments raised by learned counsel for the petitioners pertaining to the suit being barred by limitation is concerned, the plaintiff has come out with a specific case regarding defendant i.e. M/s. Lotus Organic Care having its place of business at Bhilwara and its proprietor indulging in infringement and that the plaintiff coming to know of the same on 10/4/2018, on bare reading of the said averments in the plaint, it cannot be said that the same is barred by limitation. It is well settled that while deciding the application under Order VII Rule 11 CPC, the court is required to confine its determination based on the plain reading of the plaint and the defense sought to be projected by the defendants and/or documents filed in support thereof cannot be taken into consideration while deciding the application under Order VII Rule 11 CPC. Besides the above, the allegations regarding plaintiff being aware of the defendant No.2 – proprietor of the firm being engaged in manufacture of the alleged infringing product from before the year 2013 and, therefore, the plaint being barred by limitation also, in the present circumstances of the case, does not appear to have any substance inasmuch as the submissions which have been made clearly indicate that earlier proceedings having been initiated against M/s. Lotus Organ Corporation having its place of business at Udaipur and the present proceedings have been initiated against M/s. Lotus Organic Care having its place of business at Bhilwara. If the plea raised by the petitioners based on the proprietor of the two firms being the same person is accepted, the same would result in an wholly undesirable situation, wherein, a person having been stopped/prevented while working in a particular name and style, if again indulges in similar activity under a different name and style and if the plea raised that cause of action arose when the same person had earlier indulged in the act of infringement, the same would give a handle to such persons to violate the provisions of the Act with impunity by changing names and indulge in activities against the provisions of the Acts and, therefore, the plea sought to be raised apparently has no substance. In any case, various objections sought to be raised by the petitioners are required to be raised by way of written statement and would require determination by the trial court at an appropriate stage. So far as the present application under Order VII Rule 11 CPC is concerned, the order passed by the trial court does not call for interference. In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed.