ANI Technologies Pvt Ltd v. Dinesh D Shelar

1. The present petition has been filed challenging the order dated 29th July, 2019 by which the amendment application moved by the Respondent - Dinesh D Shelar (hereinafter „Plaintiff‟) has been allowed subject to payment costs of Rs.50,000/- as costs. The background of the dispute is that the Plaintiff had filed a suit for permanent injunction in respect of its circle logo which it was using in respect of its courier services. It is the case of the Plaintiff that the Petitioner - Defendant (hereinafter `Defendant‟) is running its cab service under the trademark ‘OLA’ along with the logo which is identical/similar to the Plaintiff’s logo. During the pendency of the suit, one of the logo marks of the Plaintiff got registered. Thus, the Plaintiff sought to 2019:DHC:4167 amend and bring the said registration on record. On the issue of permission being granted for bringing the trademark registration on record, no grievance has been raised in this Petition.

2. Insofar as the second aspect is concerned, the contentious issue is in respect of the amendment to paragraph 22(k) of the plaint. The said paragraph reads as under: “k. Further, it is pertinent to mention that in Defendant's Mobile App as recently downloaded by the Plaintiff, the impugned logo is being used by the Defendant in standalone manner, which increases the level identity and/ or deceptive similarity between the two marks. Extracts of Defendant's Mobile App are being filed in these proceedings.”

3. The written statement, while dealing with paragraph 22(k) avers as under: “(k) It is denied that the impugned logo is being used by the Defendant in standalone manner which increase the level identity and/or deceptive similarity between the two marks. The trademark of the Defendant uses a circle in the shape of a black wheel with a green solid center, which is totally distinctive of the source of the Defendant.”

4. During the pendency of the suit, the Trial Court recorded the statement of the Plaintiff under Order X CPC wherein the Plaintiff stated as under: “I am carrying the courier business since 2008 My business pertains to the area Mumbai, Thane and New Mumbai and not anywhere else outside Maharashtra or for that matter even in Maharashtra. I have employed 4 employees. Initially, my turn over was 4 Lakhs annually and it is 12 Lakhs now. If I remember correctly, I came first time in Delhi in 2012. I do not remember if I had visited Delhi in the year 2016-

17. I came to know about. Ola Cabs since the year 2017.[1] became aware about Ola Cab service in the year 2016, before that I was not aware. In the year 2017, I came to know about the logo of defendant company as informed by one of my customers. I can not write English though I can understand a little bit. I had read the plaint filed by me. The contents were also explained to me by my counsel. I do not remember the month but it was in the year 2017, I came to know Mr. Himanshu Deora. He was introduced to me through my friend namely Sh, Ashok Mangali Dhuria in Bombay. I am not personally well aware of the exact nature of occupation/services/business of Mr. Ashok Dhuria but he is into some corporate services. I was told that Mr. Himanshu Deora is an Advocate, besides that, he is not known to me, nor is there any relation between us. I have not visited Amar Colony area in Delhi not even heard of it. The present suit have been filed in Delhi keeping in view the fact that counsel which I have engaged in Delhi would be expensive as he would have to travel all the way to Mumbai or to some other place. Besides that there was no reason for me to file the present suit in Delhi. Before filing the suit, I had word with my Advocate Mr. Himanshu Deora. I do not exactly remember what conversation took place between us but he told me that there is some logo on the receipt and thereafter I told him "Aap dekh lijiye, kar lijiye jo kuch karna hai" Besides this, there was no other conversation. I have paid the money towards the receipt but I do not remember how much money. I do not remember the date of receipt also. I have never taken a ride in Ola cab and I have never booked Ola cab on my own. I have never seen the website of Ola cab till date. I have never seen the mobile app of Ola cab. Never ever have I downloaded Ola app. I have seen the symbol/logo of Ola cab on the taxis. I do not own any vehicle except one two wheeler which is Honda Karizma. I use one vehicle Honda Activa for my business purpose which is owned by one of my friends. Besides this, no other vehicle is used. I have one computer which is installed at home. I purchased it somewhere in the year 2011. I do not have access to the internet in my computer. I do not have any computer at my business place for my business purpose. I do not also use internet on my mobile and also don't access internet on my mobile phone. The internet is accessed through the internet cafe. The domain- name of my business was "www.passim.in" in the year 2009 initially. Later on, in the year 2017, I took the domain name 'www.passimcourier.com‟. I do not have any website neither personal nor for business purpose. The domain name was got registered by one Bilal Sir, I do not remember his full name, nor his father name, nor his exact address however it is somewhere behind the police station Ghatkopar near Parsiwadi, Mumbai-86. Rs, 3600/- cash was paid to him towards his charges. Besides that no sum of money was paid to him. I do not have much knowledge about the IT services. I do not know the name of domain name Registrar. I had once searched the website of the defendant Ola (Only once). I do not remember the date and time and the month exactly. It was checked before filing of the suit. The plaintiff‟s logo was made by Sh. Sabir Ali Sheikh. Sahara Computer Institute is a proprietorship firm which imparts training to the children pertaining to Excel, Word, MSCIT (a computer programme authorised by Maharashtra government), DTP designing. Sh. Sabir Ali Sheikh is the sole proprietor. I paid Rs, 2000/- cash to Sh. Sabir Ali Sheikh towards his charges. I had personally accessed the website www.passimcourier.com last month. Before that I do not remember when I visited the said website. I do not remember if I had accessed the said website in the month of June, July 2017. I do not remember that the said website was active/working condition in the month of June, July 2017. I do not visit my said website frequently, the same is accessed as and when there is some work.”

5. The grievance of the Defendant is that the amendment sought by the Plaintiff under Order VI Rule 17 CPC sought to withdraw an admission which was made by the Plaintiff in the Order X CPC statement. The amendment sought by the Plaintiff in the said paragraph reads as under: “Amended Para 22(k) k. Further, it is pertinent to mention that in Defendant‟s Mobile App, as is recently downloaded by for the Plaintiff, the impugned logo is being used by the Defendant in standalone manner, which increases the level identity and/or deceptive similarity between the two marks. Extracts of Defendant‟s Mobile App are being filed in these proceedings.”

6. Though, the amendment itself sought deletion of a phrase as set out in italics above, in the rejoinder, the Plaintiff restricted the amendment to replacing the word ‘for’ in the place of ‘by’.

7. The Trial Court, considered the disputes on the second amendment sought in the application and allowed the same. Mr. Rajiv Virmani ld. Senior Counsel for the Petitioner submits that the allowing of the amendment in effect leads to withdrawal of an admission and an inconsistent plea by the Plaintiff, inasmuch as the Plaintiff had admitted in the Order X statement that he had not downloaded the mobile app of OLA, whereas in paragraph 22(k) he had stated that he had downloaded the said mobile app. Thus, Mr. Virmani, submits that the Plaintiff ought not to be allowed to amend its plaint to remove this inconsistency.

8. On the other hand, Mr. Neeraj Grover, ld. counsel submits that the statement under Order X CPC cannot be read as an admission as the settled position in law is that Order X statements can be used by the Court only to identify the matter in controversy and not to seek admissions. He relies on the judgment of the Supreme Court in Kapil Corepacks Pvt. and Ors. v. Harbans Lal through Lrs., (2010) 8 SCC 452. The relevant para of the judgment reads as under:

17. The object of the examination under Order 10 Rule 2 of the Code is to identify the matters in controversy and not to prove or disprove the matters in controversy, nor to seek admissions, nor to decide the rights or obligations of parties. If the court had merely asked the second appellant whether he had executed the agreement/receipt or not, by showing him the document (by marking the document for purposes of identification only and not as an exhibit), it might have been possible to justify it as examination under Order 10 Rule 2 read with Order 12 Rule 3A of the Code. But any attempt by the Court, to either to prove or disprove a document or to cross-examine a party by adopting the stratagem of covering portions of a document used by cross-examining counsel, are clearly outside the scope of an examination under Order 10 Rule 2 of the Code and the power to call upon a party to admit any document under Order

12 Rule 3A of the Code. What the High Court has done in this case is to `cross-examine' the second appellant and not examine him as contemplated under Order 10 Rule 2 of the Code. We therefore hold that the purported examination under Order

10 Rule 2 of the Code, by confronting a party only with a signature on a disputed and unexhibited document by adopting the process of covering the remaining portions thereof is impermissible, being beyond the scope of an examination under Order 10 Rule 2 of the Code.”

9. On the other hand, Mr. Virmani submits that the statements under Order X Rule 2 have been held to be admissions and in fact decrees are passed on the basis of statements made in such recordals.

10. Without going into the question as to whether the amendment ought to have been allowed or not, it is sufficient to observe that paragraph 22(k) of the plaint basically seeks to rely on the mobile app which had been put up by the Defendant - OLA cabs in order to enable the consumers to call for cabs. It is not in dispute that the OLA logo was being used on the mobile app by OLA cabs without the letters OLA on the said logo. The purpose, according to the Plaintiff to rely on the on the mobile app was only to show that the logo was being used in a standalone manner. The use of the logo is not even disputed by OLA cabs.

11. Insofar as the inconsistency which would arise between the statement recorded under Order X CPC and the amendment which is sought, since the mobile app itself is not a disputed fact, the amendment would not in any manner affect the merits of the matter. However, to the extent that the Defendant wishes to show the lack of bonafides of the Plaintiff, by pointing out inconsistencies, they are allowed to rely upon the statement made in the original plaint and in the Order X statement.