Full Text
HIGH COURT OF DELHI
Date of Decision: 3rd July, 2023
KENT RO SYSTSMS LTD. AND ANR ..... Plaintiffs
Through: Ms. Rajeshwari. H & Mr. Deepanshu Nagar, Advocates.
Through: Ms. Meenakshi Ogra, Mr. Tarun Khurana, Mr. Rishi Vohra, Advocates. (M:9999498955)
JUDGMENT
1. This hearing has been done through hybrid mode. I.A. 13258/2019 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. I.A. 14213/2019 & I.A. 14495/2019 (for directions)
3. I.A. No. 14213/2019 and I.A. No. 14495/2019 are two applications filed by the Defendants seeking to place on record certain additional documents.
4. The present suit relates to alleged infringement of Plaintiff’s designs being no. 21930[9] and 262661 by the Defendants. I.A. No. 14213/2019 has been filed by the Defendants seeking to place on record a chart comparing the design of the Plaintiffs with prior art documents.
5. Considering the nature of the documents, the same are taken on record. If the Plaintiffs wish to file any rebuttal documents, they are permitted to do so within six weeks.
6. I.A. No. 14495/2019 has been filed by Defendants seeking to place on record two cancellation petitions in respect of design registration NO. 262661. The submission of ld. Counsel for the Defendants is that the cancellation was initially filed on 22nd October, 2018. Since there were some deficiencies, a revised petition was filed on 14th March, 2019. She further submits that the written statement in the present suit was filed on 21st December, 2018. Thus, the documents and the rectification petition ought to be permitted to be taken on record as the same would be relevant for the adjudication of the suit.
7. Ms. Rajeshwari, ld. Counsel for the Plaintiffs opposes this prayer and submits that the cancellation petition was filed prior to the filing of the written statement and the same was within the power and possession of the Defendants. Thus, the same ought to have been filed along with the written statement. She, further, submits that the present application was moved in October, 2019 however, several months before that, the Plaintiffs had already filed the replication in April, 2019.
8. Ms. Rajeshwari places reliance upon the decision of the ld. Single Judge of this Court in Kent RO Systems v. Jaideep Kishnani [CS (Comm) 84/2019, dated 9th March, 2023] where under similar circumstances the documents were not taken on record by the Court.
9. Heard ld. Counsel for the parties. The Court has also examined the chronology of events relating to the cancellation petitions. Clearly the cancellation petitions were filed before the Office of the Controller of Designs prior to the filing of the written statement. Thus, there is no reason whatsoever for the Defendants to not have filed the said cancellation petitions along with their written statement. If the first cancellation petition would have been placed on record, the Court could then have considered allowing the second/rectified cancellation petition to be brought on record. However, there has been a delay of more than a year from filing of the first cancellation petition in moving the present application, that too after pleadings have been completed.
10. In Kent RO Systems (supra), the Court has observed as under:
11. In the opinion of this Court, the filing of documents at this stage, after completion of pleadings, would also be contrary to the DHC (Original Side) Rules 2018, which clearly proscribes filing of documents after completion of pleadings. The said Rule reads:
12. Considering that the cancellation petitions were within the control and power of the Defendant for being filed with the written statement, no cause is made out to condone the delay in filing the said documents. The application filed by the Defendants is without merit and is, accordingly, dismissed. I.A. 1061/2020 (for release of goods)
13. This application has been filed by the Defendants seeking release of the goods and moulds/dyes which were seized by the Local Commissioner.
14. Ld. Counsel for the Defendants submits that no interim injunction was granted by this Court in this matter. However, seizure has been ordered by the District Court vide order dated 15th October, 2018 and the same has been carried out by the Local Commissioner which is causing enormous difficulty to the Defendants.
15. Ms. Rajeswari, ld. Counsel submits that the injunction application is pending for hearing and the same may be heard. She submits that if the seized goods are allowed to be released into the market, tremendous prejudice would be caused to the Plaintiffs and the same have been seized for the last three to four years.
16. A perusal of the record would show that the present matter was filed before the District Courts, Rohini as TM No. 18/2018. Vide order dated 9th October, 2018, though the Court did not grant interim injunction, the ld. ADJ directed appointment of a Local Commissioner with the following directions: “The LCs shall prepare an inventory of the goods similar to the registered design of the plaintiffs product and seize them under their signature. The seized products shall be handed over to the defendants on superdari with undertaking to produce the same as and when asked by court. In case of refusal by the defendants, the plaintiff shall be bound to take them on superdari. The LC shall also record the details of such other persons who may be having active role in the manufacture, supply, distribution etc. of the infringed products. Local Commissioner is further directed to seize the cash memos and other accounts books, relevant account books and produce the same before the court. Local Commissioners shall visit the spot after giving notice to the plaintiff and shall not give any notice or information to the defendants regarding their visit. Plaintiff is also at liberty to carry out videography and photography. The plaintiff and Local Commissioner can take the help of concerned local police if need arises while carrying out the commission and concerned SHOs will be bound to do the needful as per law to the Local Commissioner in carrying out the commission after showing this order. The Local Commissioners are further directed to break open the locks in the presence of Police Officer, if need arises. The Local Commission shall be executed within 7 working days from today and report be filed within four weeks of conducting the commission.”
17. In the opinion of the Court, since no interim injunction was granted in this case, the question of seizure would not arise. At best, if the Court requires a sample product or wishes to get an inventory prepared, the Local Commissioner can be appointed only for the said purposes. In cases where ex parte injunctions are not granted by the Court, seizure of the products as also the moulds/ dyes, etc., would in effect result in an injunction being passed which would be impermissible, as the requirements of law would not be satisfied for such seizure. Granting of a seizure order would in effect become an injunction order, without the conditions for such grant having been made out. The Defendant in such cases would be put to tremendous prejudice.
18. A perusal of the Local Commissioner’s report would show that the total seizure is as under:
19. Insofar as the moulds and dyes are concerned, the observation of the Local Commissioner is as under: “That the undersigned went to the first floor of the premises where undersigned found heavy machinery in place which has been used for manufacturing water purifier. Apart from that 6 dyes/moulds were available in the said floor in closed condition. As at that time dye technician was not allowed to enter into the said premises. Therefore dyes could not be examined at that time to inspect whether it belongs to the same products Apple Aifa and Apple Crysta water purifier.”
20. Since the moulds/dyes are not seized, the question of release does not arise. The Defendants shall however ensure that one sample of alfa and crysta products are preserved for the purposes of the trial in the present suit and for the purposes of further proceedings. The remaining seized goods are released and the Defendants are free to deal with them in its day to day business.
21. The representative of Plaintiffs may visit the Defendants’ premises and in front of the representative the products may be opened up in order to ascertain whether the Defendants’ products are in saleable condition.
22. The Defendants shall also file proper accounts for the disposal of these products and file the same. CS(COMM) 82/2019 & I.A. 13256/2019 (for stay)
23. The rebuttal documents/ chart, in respect of the documents taken on record today, if any, be placed on record by the Plaintiffs within six weeks.
24. List for hearing on the injunction application on 2nd November, 2023.
PRATHIBA M. SINGH JUDGE JULY 3, 2023 dj/sk