Bajaj Resources Limited & Anr v. Goyal Herbals Private Limited & Ors

7.4. Thechange in nameand authorized signatories of the plaintiffs and the plaintiff no.1’s conversion from a public company to a private limited company.

8. Briefly, the undisputed facts of the present case which are relevant in the present application are set out below:

8.1. The present suit was instituted in November 2016.

8.2. The plaintiffs had set up a case for infringement of trade mark/ trade dress as well as for passing off in the original plaint.

8.3. The issues in the present suit were framed on 2nd November, 2018.

8.4. The sole witness of the plaintiffs tendered his evidence by way of an affidavit on 6th September, 2019. The cross-examination of the plaintiffs’ witness concluded on 2nd March, 2022.

8.5. The parties were thereafter referred to the Mediation Centre by this Courton 1st May, 2023. Themediation, however, failed on 6th October, 2023.

8.6. Since then, there has been no further proceedings in the present suit.

9. Ms. Kruttika Vijay, counsel appearing on behalf of the plaintiffs, has made the following submissions:

9.1. All the amendments sought to be introduced in the plaint are pursuant to events which occurred after the trial had commenced in the suit. Therefore, in spite of the plaintiffs’ necessary due diligence, the aforesaid amendments could nothavebeen introduced priorto the commencementoftrial in the suit.

9.2. Subsequent to the registration of the trademarks ‘ALMOND DROPS’ and ‘ ’ in favour of the plaintiff no.1, it acquired statutory rights in relation to the same which includethe right to institute a suit for infringement of the said trademarks/ trade dress against the defendants.

9.3. The aforesaid amendments are necessary for determining the real question in controversy between the parties and the present application has been filed to avoid multiplicity of proceedings.

9.4. Neither the aforesaid amendments change the nature and character of the present suit nor do they set up a new case which is foreign to the case set up in the original plaint.

9.5. There is no interim injunction in favourofthe plaintiffs and against the defendantsin the present suit. Therefore, despite the fact that there will be an ostensible delay by way of the aforesaid amendments, no prejudice will be caused to the defendants if the present application is allowed.

9.6. In supportof her submissions, counselfor the plaintiff has relied upon the following judgments: Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another [(2022) 16 SCC 1] and Pravesh Narula Trading as M/s. CapitalEnterprises v. Raj KumarJain Trading as M/s. Bholaram Puranmall and Another [2024 SCC OnLine Del 7537].

10. Mr. Jaspreet Singh Kapur, counsel appearing on behalf of the defendants, does not object to amendment mentioned in paragraph no.7.[4] above. However, he opposes the remaining amendments sought to be introduced.

11. He has made the following submissions:

11.1. On the first date of hearing in the present suit, an ex-parte ad interim injunction in favour of the plaintiffs was denied on the ground that the plaintiffs did not have any registration for the mark ALMOND DROPS. Further, the defendants, in their written statement, pleaded that the plaintiffs cannot claim any statutory right over the descriptive words ‘ALMOND DROPS’, picture of almonds and colour combination of golden and brown and the same are not registrable. Despite the aforesaid, the plaintiffs took no steps to apply for registration of the mark ‘ALMOND DROPS’ until May

2021.

11.2. During the cross-examination of the plaintiffs’ witness, he stated that he is not aware if the plaintiffs have filed any application for the mark ‘ALMOND DROPS’ or for the colour combination of golden and brown.

11.3. The plaintiffs, on 31st May, 2022, moved an application for producing additional documents. However, they did not file copies of the trade mark applications for the mark ‘ALMOND DROPS’. Theplaintiffs have therefore failed to exercise due diligence in bringing the aforesaid amendments on record.

11.4. The plaintiffs are intentionally delaying the present proceedings. Further, by way of the present application, the plaintiffs have mala fidely endeavoured to improve the case set up in the original plaint.

11.5. The aforesaid amendments, if allowed to be taken on record, would change the nature and character of the suit as the parameters in a passing off action differ from those in an infringement action.

11.6. For the aforesaid reasons, the defendants would be prejudiced in case the present application is allowed and the aforesaid amendmentsare taken on record.

12. I have perused the material on record and heard the counsel for the parties.

13. The original plaint filed in the suit was in respect of infringement of trade mark/ trade dress, infringementofcopyrightand passing off. Atthetime of filing of the suit, the plaintiff only had one trade mark registration in its favour, i.e., for the mark ‘ ’ in Class 3.

14. Subsequently,duringthependency ofthesuit, theplaintiff no.1 applied for and obtained three other trade mark registrations, as mentioned hereinabove, asa result ofwhich, theplaintiffno.1 now enjoysstatutory rights in the said registered marks.

15. In Life Insurance Corporation (supra), the Supreme Court has elucidated the principles relating to amendmentofthe plaint which are set out below: “ 71. Our final conclusions may be summed up thus:

71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived.

71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC.

71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and

(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence.

71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”

16. In a recent judgment in Pravesh Narula (supra), a Coordinate Bench of this Court had also allowed an application for amendment of the plaint in similar circumstances where amendment was sought after the closure of the plaintiff’s evidence. The Court relied upon the observations of the Division Bench in Usha International v. Usha Television Ltd. [2022SCCOnLineDel 306], and the same are as under: “11.In Nichhalbhai v. Jaswantlal, AIR 1966 SC 997 their Lordships of the Supreme Court observed that “if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits.” xxx xxx xxx

13. We have heard the learned counsel for the appellants and carefully perused the judgments cited at the Bar. In our opinion, the law relating to infringement and passing off are fundamentally similar. The supervening event of registration of trademark under the Trade and Merchandise Marks Act, 1958 is a fact which can be taken note of and on that basis the application for amendment deserves to be allowed.

14. The rule of amendment of pleadings has to be governed on the basic rule of justice, equity and good conscience. When this principle is applied, the amendment as prayed has to be allowed. We are satisfied that the alternative plea that is sought to be raised by the appellant in the amendment application is only by way of expatiating his rights which he has secured by a statute. Apart from this, the main consideration for allowing the application is to avoid multiplicity of proceedings which means saving of precious judicial time and saving of avoidable expenses for the litigants.”

17. In Pravesh Narula (supra), the Courtalso relied on the observationsof the SupremeCourtin Rajesh KumarAggarwal v. K.K. Modi[(2006)4 SCC 385], which are as under:

opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.”

18. In light of the aforesaid judgments, the Court, in Pravesh Narula (supra), held that the power of the Court to allow amendment even after commencement of trial is not restricted. It was also observed that if the amendmentis notallowed, the same would result in unnecessary multiplicity of litigation between the parties.

19. In the present suit, the aforesaid three registrations in favour of the plaintiff no.1 were clearly granted subsequent to the commencement of the trial in the present suit.

20. It cannot be disputed that the plaintiff no.1 has the statutory right to institute a fresh suit for infringement of trademarks/ trade dress, which were subsequently registered in its favour. Therefore, by allowing the aforesaid amendmentsto be taken on record in the present suit, the Court would avoid multiplicity of litigation between the parties.

21. It is the concern ofthe defendantsthat taking theaforesaid amendments on record would delay the suit as, pursuant thereto, the defendants would be filing an amended written statement, resulting in framing of additional issues and the requirement for leading fresh evidence.

22. It is, however, an admitted position that there is no interim injunction in favourof the plaintiffs and against the defendants. Therefore, in my view, any delay in the disposal of the suit would not prejudice the defendants.

23. The original plaint filed in the suit was in respect of infringement of trade mark/ trade dress and passing off, among other reliefs. Therefore, the aforesaid amendmentsdo not, in any manner, changethenature and character of the present suit.

24. In light of the aforesaid, I am of the considered view that the amendmentto take on record subsequenttrade mark registrations in favourof the plaintiff no.1 and a pending trade mark application ought to be allowed.

25. By way of the present application, the plaintiffs also seek to bring on record facts, along with supporting documents, pertaining to asubsequentsuit against the defendants’bottle manufacturer, which was decided by this Court in favour of the plaintiffs. The aforesaid suit and orders/judgmenttherein are judicial records and would berelevant for the adjudication ofthe present suit. Therefore, amendment with regard to the aforesaid is liable to be allowed.

26. Further, the plaintiffs seek to place on record their updated sales turnover and advertising expenses in relation to their flagship product under the mark ‘BAJAJ ALMOND DROPS HAIR OIL’ from the financial year 2015-16 to 2023-24 to substantiate their enhanced goodwill and reputation underthe aforesaid mark subsequentto the institution of the present suit. The aforesaid figures are for the period subsequentto the filing of the present suit and do notset up any new claim or cause of action in the present suit. Hence, the amendment with regard to the aforesaid is also liable to be allowed.

27. In view of the discussion above, thepresent application for amendment of plaint is allowed and the plaintiffs are permitted to place on record the amended plaint. CS(COMM) 1564/2016 & I.A. 5462/2022, I.A. 9673/2022

28. In view of the order passed above in I.A. 39864/2024, the plaintiffs shall file the amended plaint within two (2) weeks.

29. The defendantsshall file their amended written statement within thirty (30) days thereafter.

30. Mr. Kapur submits that rectification petition in respect of one of the trade mark registrations granted in favour of the plaintiff no.1 subsequent to the institution of the present suit has already been filed on behalf of the defendants. He submits that in view of the aforesaid, the present suit is liable to be stayed.

31. Let the defendants move an appropriate application in this regard.

32. List before the Joint Registrar on 19th March, 2025 for completion of pleadings. AMIT BANSAL, J JANUARY 22, 2025