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HIGH COURT OF DELHI
Date of Decision: 27th November, 2018.
VOLTAS LTD. ..... Plaintiff
Through: Ms. Asavari Jain, Ms. Geetanjali Visvanathan and Mr. Nischal Anand, Advs.
Through: Mr. Umesh Mishra, Adv.
JUDGMENT
1. The plaintiff has sued the two defendants namely Vishal Dua and Damini Enterprise, for permanent injunction restraining infringement of trade mark ‘VOLTAS’ and passing off and for ancillary reliefs.
2. The suit came up first before this Court on 1st March, 2016 when, while issuing summons/notice thereof, vide ex-parte ad-interim order, the defendants restrained from using the mark ‘VOLTAS’ in any manner whatsoever and commission issued to visit the premises of the defendants and to make an inventory of the electric irons and/or other products bearing the mark ‘VOLTAS’.
3. The defendants appeared in response to the summons issued and filed a written statement to which replication has been filed by the plaintiff.
4. Vide order dated 16th January, 2017, the following issues were framed in the suit: 2018:DHC:7481 “(i) Whether the plaintiff is the registered proprietor of the mark „VOLTAS‟ bearing registration number 315680? OPP
(ii) Whether the defendants are guilty of infringing the registered trademark of VOLTAS by using the trademark VOLTAS or any other deceptively similar trademark as to that of the plaintiff? OPP
(iii) Whether the defendants are guilty of passing off by using the trademark VOLTAS or any other deceptively similar trademark as to that of the plaintiff? OPP
(iv) Whether the present suit is liable to be dismissed on the ground of mis-joinder and non-joinder of parties? OPD
(v) Whether the plaintiff is entitled to rendition of accounts and if so to what extent? OPP
(vi) Whether the plaintiff is entitled for damages and if so to what extent?OPP
(viii) Relief.”
5. Vide order dated 5th January, 2018, the parties were referred to Mediation Cell of this Court, which remained unsuccessful.
6. The interim order earlier granted continued and the defendants did not press for hearing of the application. Recording of evidence has been completed and the counsel for the plaintiff and the counsel for the defendants have been heard.
7. The counsel for the defendants, at the outset only states that the defendants have not opposed the grant of relief of permanent injunction as sought by the plaintiff and have no objection to a decree as claimed, for permanent injunction being granted. It is further stated that the defendants have always been willing for the same and the main dispute between the parties is of damages, claimed by the plaintiff and on which no settlement could be arrived at in mediation.
8. The counsel for the plaintiff states that though the defendants denied having ever used the mark of the plaintiff but the Commissioner appointed by this Court executed the commission and has reported a large contingent of goods bearing the mark of the plaintiff found at the premises of the defendants. It is further stated that as per the manufacturing price and the sale price of the said goods deposed by the witness of the defendants themselves, according to the plaintiff, the plaintiff is entitled to damages in the sum of Rs.5,38,680/- from the defendants.
9. The counsel for the defendants, on being asked as to what is the offer of the defendants, states that the defendants offer Rs.[1] lakh only by way of damages. The counsel for the defendants however has fairly stated that the defendants have not led any evidence explaining the presence of the goods bearing the impugned mark found by the Commissioner.
10. In the circumstances aforesaid and keeping in mind that the damages aforesaid are with respect to seized goods only and not with respect to infringement and passing off committed by the defendants prior thereto, I see no reason to deprive the plaintiff of damages as assessed on the basis of evidence led.
11. A decree is accordingly passed in favour of the plaintiff and jointly and severally against the defendants, (i) of permanent injunction in terms of prayer paragraph 31(a), (b) & (c) of the plaint dated 24th February, 2016; (ii) of delivery of all the infringing materials/goods seized by the Commissioner and entrusted on superdari to the defendants, by directing that the representative of the plaintiff visits the premises of the defendants within fifteen days of today, when either the seized goods shall be destroyed or if the impugned mark is capable of being obliterated/removed therefrom, shall be removed/obliterated and the goods, without the impugned mark, remain with the defendants; (iii) of recovery of Rs.5,38,680/-; and, (iv) of costs i.e. court fees paid, fee paid to the Commissioner and professional fee assessed at Rs.1,50,000/-.
12. The counsel for the defendants states that the decree for recovery may be for lesser amount.
13. To obviate the plaintiff from filing execution, it is ordered that if the defendants, on or before 26th December, 2018 pay a sum of Rs.[6] lakhs to the plaintiff, the decree for recovery of damages as well as costs, as aforesaid, shall stand fully satisfied. If the amount is not so paid, the amount ordered inclusive of costs shall also incur interest @ 12% per annum till realisation. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J. NOVEMBER 27, 2018 ‘bs’