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HIGH COURT OF DELHI
CM(M)-IPD 3/2023, CM 53/2023 & CM 54/2023 KHILENDER GUPTA TRADING AS M/S BOBBY
ENTERPRISES ..... Petitioner
Through: Mr. Manish Singhal,Mr. Shantnu Aggarwal and Ms. Sakshhi Garg, Advs.
Through: Mr. Amit Tomar, Adv.
JUDGMENT
01.05.2023
1. This is a petition under Article 227 of the Constitution of India, assailing order dated 20th March 2023, passed by the learned District Judge (Commercial) (“the learned Commercial Court”) in CS (Comm) 498/2020.
2. The issue in controversy is brief and no detailed recital of facts is necessary.
3. The present petitioner is the respondent before the learned Commercial Court. CS (Comm) 498/2020 was instituted by the respondent against the petitioner, alleging infringement, by the petitioner, of the respondent‟s mark BOOM BOOM in relation to chocolates, Aam Papad, Churan Goli, toffee, fruit balls, candies, puffs, Namkeen, spices and confectionery or other allied cognate goods as well as passing off, by the petitioner, of its products as those of the respondent.
4. Consequence to issuance of summons, the petitioner filed a written statement by way of response to the suit. In the written statement, one of the contentions urged by the petitioner was that the mark BOOM BOOM was being used by the petitioner, through his father Budhsen Gupta, as his predecessor in interest, with effect from 1st January 2001.
5. Replication was filed by the respondent. Trial in the suit is yet to commence.
6. The Petitioner-defendant thereafter moved an application under Order VI Rule 171 of the CPC, seeking to amend the written statement filed by it. Though amendments were sought in several of the paragraphs of the written statement, the amendments sought may fall into three categories, which were by way of
(i) change of the claim of the user of the impugned BOOM
(ii) incorporation, in the written statement, of averments regarding sales figures and advertising and promotional expenses incurred by the defendant and
(iii) introduction, in the written statement, of various legal
17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. proceedings in which the defendant‟s mark is claimed to have been upheld and protected.
7. Para 11 of the application filed by the petitioner under Order VI Rule 17 sets out the amendments that the petitioner desired to incorporate in the written statement. For ease of reference, the entire paragraph may be reproduced thus:
8. The impugned order dated 20th March 2023 rejects the petitioner‟s amendment application on the ground that, by changing the date from which the petitioner was claiming user of the impugned mark, the petitioner was executing a “U-turn”. It was also observed, independently, that the amendments sought would adversely impact the interests of the respondent-plaintiff.
9. Though the findings in the impugned order are only with reference to the amendments sought with respect to the date of claim of user by the petitioner, the order rejects the amendment application in toto.
10. It is obvious that, without any reasoning, the learned Commercial Court could not have rejected the prayer for incorporation, by way of amendment, in the written statement, of the averments relating to sales figures, advertising and promotional expenses and legal proceedings in which the petitioner‟s mark had been asserted. Even otherwise, these are assertions which can legitimately been introduced by way of amendment, as they merely supported the case set up by the petitioner in its written statement, and cannot said to be contrary to any averment contained therein.
11. Mr. Tomar, learned Counsel for the respondent has also restricted his opposition, to the present petition, to the amendment sought by way of change of the date of user claim. He submits that the petitioner could not, by way of amendment, change the claim of user of the impugned mark from 2000-2001 to 1st August 1999. He also submits that the petitioner must have been aware of the actual date of user, by the petitioner or its predecessor-in-interest, of the impugned mark, and that there was no justification, therefore, for the amendment to be allowed at a belated stage.
12. The law relating to allowing amendments is well settled. Trial in the suit is yet to commence. As such, the proviso to Order VI Rule 17 of the CPC does not apply. Additionally, the amendment that was sought was only in the written statement, and it is well settled that, while request for amendment, before commencement of trial, are to be liberally dealt, where the request relates to amendment of a written statement, the Court is required to be even more liberal in its approach.[2]
13. This Bench has, in its judgment in Amit Bansal v. C.S.H. Power Himoinsa (P) Ltd[3], culled out the following principles governing Order VI Rule 17 from the decisions of the Supreme Court in L.I.C. v Sanjeev Builders Ltd[4], B.K. Narayana Pillai v. Parameshwaran Pillai[5] and Rajesh Kumar Aggarwal v. K.K. Modi[6]: “(i) Ordinarily, the Court is required to be liberal while dealing with a prayer for amendment. Prayers for amendment of written statements are required to be treated even more liberally than prayers for amendment of plaints.
(ii) Where the Court finds that declining the prayer for amendment would result in the applicant suffering irreparable loss or injury, the amendment should be allowed. Qua the opposite party who opposes the amendment, the Court is required to examine whether the amendment would result in irreversible injustice; else, it should be allowed. Refer L.I.C. v Sanjeev Builders Ltd., 2022 SCC OnLine SC 1128
(iii) There is no absolute bar to allowing an amendment which introduces a cause of action which is, by then, barred by time. While, ordinarily, such an amendment would be refused, the matter ultimately rests with the discretion of the Court and, if the amendment is found necessary in the interests of justice, it would be allowed. The fact that the amendment introduces a relief which, by then, is barred by time is, therefore, merely a consideration to be borne in mind by the Court.
(iv) The ultimate consideration has to be subserving of the cause of justice and avoiding multiplicity of litigation.
(v) All amendments are mandatorily required to be allowed which
(a) do not work injustice to the other side, and (b) are necessary for determining the real questions in controversy between the parties. It must be remembered, in this context, that Courts are ultimately required to adjudicate on the merits of the cases that come before them.
(vi) If an amendment is sought to correct an inefficiency in originally stating the case, it should be allowed. Such an error should be permitted to be rectified by amendment, so long it is not fraudulent, and the remedial steps taken in that regard do not unjustifiably injure accrued rights.
(vii) All amendments which are necessary to determine the real issue in controversy in the suit, should be allowed.
(viii) Amendments which alter or substitute the cause of action originally pleaded should not be allowed.
(ix) Amendments which seek to negate admissions of fact, or which are mutually destructive therewith, should not be allowed. On the other hand, inconsistent pleas and alternative reliefs can be permitted to be introduced by amendment.
(x) An amendment which does not set up a new case, or introduce a new cause of action, but merely amounts to incorporating a different or additional approach to the same facts, should be allowed, even after expiry of limitation.
(xi) The expression “cause of action”, in this context, does not mean “every fact which it is material to prove to entitle the plaintiff to succeed”, which is its normally understood connotation. It only means a new claim made on a new basis constituting new facts. The word “new case” has to be understood as meaning “new set of ideas”.
(xii) An amendment which seeks to introduce an additional relief, the factual basis for which already exists in the plaint as originally filed, should be allowed.
(xiii) An amendment which merely adds to the facts already pleaded should be allowed.
(xiv) Courts should not adopt a hypertechnical approach while dealing with prayers for amendment of pleadings. Technicalities of law should not be allowed to hamper administration of justice.
(xv) In this context, the Court should bear in mind the fact that its objective should be adjudicating and deciding on the competing and conflicting rights of parties, and not punishing parties for their mistakes.
(xvi) If a new cause of action arises during the pendency of a suit, and the plaintiff would be entitled to file a fresh suit based thereon, the plaintiff should be allowed to amend the existing suit and introduce the claim by amendment. Events subsequent to the filing of the suit have, therefore, also to be borne in mind by the Court.
(xvii) The Court examining a plea of amendment is not concerned with the correctness, falsity, or merits of the case that the amendment seeks to set up. The Court should not, therefore, record any findings on the merits of the amendment, or the stand that is sought to be canvassed thereby.”
14. Applying the aforesaid principles, I am of the opinion that, in the interests of justice, the amendments sought to be incorporated in the written statement by the petitioner, by the amendment application filed before the learned Commercial Court, ought to have been allowed. The finding, in the impugned order, that the petitioner was, by the said amendments, executing a “U-turn”, cannot be accepted. The petitioner had, in the original written statement, claimed user of the impugned mark from 2000-2001. By the amendment, the petitioner was merely averring that, on the basis of material which had later come to its notice, the petitioner came to learn that its predecessor-in-interest Mr Budhsen Gupta had, in fact, been using the mark since 1st August 1999. At the highest, the amendment can only be regarded as correctional in nature. The petitioner, as the defendant in the suit, was entitled to claim user of the impugned mark from any date that it chose. The onus would be on the petitioner to substantiate its claim by evidence.
15. Accordingly, the impugned order, to the extent it rejects the petitioner‟s amendment application is quashed and set aside. The amendments sought to be incorporated in the written statement by the said application are permitted to be so incorporated. Mr. Shantnu, learned Counsel for the petitioner submits that an amended written statement already stands filed. It is directed to be taken on record.
16. This Court has not pronounced on the merits of the amendment that the petitioner seeks to incorporate, with the petition, in the written statement. It would be for the petitioner to prove any assertions of fact though are sought to be incorporated by the amendment. The respondents, as the petitioners in the suit, would be at liberty to question the correctness of the said averments, which are sought to be incorporated by way of amendment, in accordance with law.
17. All contentions of both parties are kept open in that regard.
18. The petition stands allowed in the aforesaid terms with no order as to costs.
C.HARI SHANKAR, J MAY 1, 2023