Godfrey Phillips India Limited v. P.T.I. Private Limited & Ors.

1. Allowed, subject to all just exceptions. Application stands disposed of. Rev.Pet.141/2018 (Review of the order dated: 22.12.2017)

2. This Review Petition is filed by the plaintiff for seeking review of the judgment passed by this Court on 22.12.2017. By the detailed judgment dated 22.12.2017 running into 22 pages, the suit of the plaintiff was dismissed at the threshold by observing and holding that the plaintiff has no real prospect of succeeding, and which aspect 2018:DHC:2253 this Court considered in view of the fact that the subject suit was a commercial suit under the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015.

3. This review petition is predicated in terms of the order passed by Division Bench of this Court on 12.3.2018 in RFA(OS)(COMM) No. 7/2018. This order dated 12.3.2018 reads as under:- “It is submitted that the plaintiff had filed a previous suit – Suit No.1228/2016 against one Pelican Tobacco Company Limited and that suit, which is a subject matter of the present appeal – CS (COMM) 851/2017 [hereafter “the subsequent suit‟], was mistakenly filed by its authorized investigator. According to the appellant‟s counsel, the subsequent suit was filed under mistaken belief since PTI was in reality “Pelican Tobacco Company Limited”, a fresh cause of action arose which necessitated another suit. The appellant/plaintiff seeks to have urged about the pendency of another proceeding. However, there is no clarity as to the nature of the proceeding and whether it concerned the same party. The appellant asserts that it was under the impression, though mistaken, that PTI and Pelican Tobacco Company Limited were two different entities. In these circumstances, the Court is of the opinion that the appellant should first approach the learned Single Judge in review proceedings. Learned counsel for the appellant seeks to withdraw the appeal and approach the learned Single Judge with a review petition. Liberty granted. The appeal is accordingly dismissed as withdrawn along with the pending applications.”

4. In view of the order of the Division Bench, I have heard the counsel for the review petitioner, however the review petition in the opinion of this Court has to be dismissed and is accordingly dismissed for the reasons contained hereinafter.

5. The grounds which are stated in this review petition are four in number and these are Grounds A to D as stated in para 3 of the Review Petition. These Grounds A to D read as under:-

Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 is contrary to the decision of the Hon‟ble Division Bench in the case of Bright Enterprises Private Ltd. and Ors. vs. MJ Bizcraft LLP and Ors. (MANU/DE/0017/2017). Copy of order is annexed herewith and marked as “Annexure A-12”.

(ii) As regards this first ground, in my opinion, this cannot be a ground for review because a review under Section 114 CPC read with Order XLVII CPC is only on merits of the matter decided whereby it is found that the judgment contained an error apparent on the face of record. It is noted that the suit was dismissed at the stage of admission without issuing summons to the defendant and therefore the Court presumed the existence of the four defendants in the suit for passing the impugned judgment and taking as correct the averments made in the plaint and the documents filed. Therefore, the existence or nonexistence of a particular defendant as an entity, has no bearing on the merits of the matter which was decided in terms of the judgment dated 22.12.2017 and which was decided without even issuing of any summons to the defendant.

7. Also in my opinion, this ground urged for review is essentially a ground by an unsuccessful plaintiff to question the detailed judgment dated 22.12.2017 simply because the review petitioner/plaintiff has filed another suit being CS(COMM) NO. 1228/2016 against one Pelican Tobacco Company Limited, and in which suit the plaintiff is said to have a confirmed interim order with respect to issues which were also raised in the present suit i.e effectively it is the case that the judgment passed in this suit will effect the merits of the earlier suit in which plaintiff has a confirmed injunction order. 8.(i) In my opinion, the existence of an interim order in another suit does not prevent any other Court from finally deciding a suit on merits because an interim order does not operate as res judicata and nor as a ratio of a final judgment. It is only a final judgment which can operate as res judicata or be a ratio on law for subsequent courts, and that too depending on the facts of each case.

(ii) It is important to note that a convenient ground urged of the defendant no.1 non-existing is not something new and material for a review petition because in the plaint para 19, the plaintiff has already stated that plaintiff could not locate any office or manufacturing unit at the address of the defendant no.1 as mentioned on the packet i.e at B-19, Kosikalan, Uttar Pradesh, and therefore in effect the plaintiff knew that there would be no entity which would be existing being the defendant no.1. In fact non-existence of entities is very much a fact in many IPR matters because a non-existent entity manufactures or sells counterfeit goods, and therefore suits are filed against unknown entities by aggrieved plaintiffs who are IPR owners, and the unknown entity or person etc is commonly referred to as John Doe. Para 19 of the suit plaint reads as under:- “19. Immediately upon preliminary knowledge based on the market survey in Delhi, the plaintiff conducted further investigation to verify the details of Defendant No.1, who is believed to be the manufacturer of the infringing products. However, the Plaintiff could not locate any office or manufacturing unit at the address as mentioned on the packet i.e. at B-19, Kosikalan, Uttar Pradesh. The Plaintiff, however, learned from the market survey that the infringing products are distributed and sold in Delhi markets flagrantly. The Plaintiff verily believes that the infringing products are distributed and sold by all the defendants in connivance and the Defendants have deliberately not disclosed the mandatory details on the packaging to avoid legal actions and sanctions. It is submitted that the actual relationship between the Defendants and the details of the manufacturer would be disclosed during the course of proceedings and the Plaintiff reserves the right to amend the pleadings accordingly at that stage of the proceedings. Furthermore, the Plaintiff conducted a physical survey at the address mentioned at the packaging of the address on the packaging of the product however, shockingly as per the physical verification there does not exist any such address. Also, no details can be found on the online portal of MCA re Defendant No.1. a general online search mentions a registration of FUN GOLD (Word) in favour of Pelican India Tobacco Private Limited under No.1671950.” (underlining added)

9. Therefore the first ground which is urged for reviewing of the judgment dated 22.12.2017 is completely baseless and unjustified not only as not being available as a ground for review as an error apparent on the face of record under Section 114 CPC read with Order XLVII CPC, but also that even on facts of allegedly only now coming to know of non-existence of defendant no.1 is factually incorrect as this ground is already averred/stated in para 19 of the plaint.

10. The second ground on the basis of which review has been urged is that there are two cognate benches of this Court which have given two different findings on the same issues and cause of action, and as per the plaintiff therefore is an error apparent on the face of the record. In my opinion, however this ground is misconceived because a judgment being 'wrong' cannot be a ground for filing a review petition because a judgment being 'wrong' is not an error apparent on the face of the record. If a judgment is pleaded to be wrong then it would be only in the realm of the jurisdiction of the appellate court to hold the judgment to be wrong. What is in the realm of the jurisdiction of the appellate court to set aside a judgment on the ground that the judgment is wrong does not fall within the purview of review jurisdiction because taking of one possible view cannot said to be a basis for contending that the view taken is wrong and therefore is an error apparent on the face of the record. Therefore it is held that the second ground urged to review the judgment dated 22.12.2017 is also misconceived, and is rejected.

11. The third ground is raised on the basis of a judgment passed by the Division Bench of this Court in the case of Bright Enterprises Private Limited & Ors. vs. MJ Bizcraft LLP and Ors. 2017 (69) PTC 596 (Del) (DB) and which ground again would be liable to be rejected for the selfsame reasons given while rejecting Ground „B‟ as by this ground effectively the judgment passed by this Court is sought to be appealed before this Court itself and which is not permissible. In any case it needs to be observed that the principle of summary judgment under Order XIIA CPC can be invoked by the Court even suo moto when a suit comes up for admission because the principle of notice by an application of 30 days is only when a defendant has appeared in a suit and not before. Surely what can be done after the defendant appears can well be done at the stage of admission of the suit. Intention of legislature for dismissing suits which have no real prospect of succeeding cannot be truncated for being invoked only after the defendant appears in the suit because otherwise the very object of brining in the procedure of summary judgment applying Order XIIA CPC will be defeated. Technicalities have to yield before the intention of the legislature in bringing in a legal provision for not unnecessarily continuing commercial suits which have no real prospect of succeeding.

12. The last ground which is urged is of the judgment passed by this Court on 22.12.2017 having direct negative impact on the suit being CS(COMM) No. 1228/2016 filed by the plaintiff, however I have failed to understand this ground both on merits as also as a basis for seeking review because so far as any impact of the present suit on CS(COMM) No.1228/2016 is concerned, the same will be the consequence of law and it cannot be argued by the plaintiff in an unsuccessful suit to contend that the judgment should not be passed although the judgment could be and has been passed on the merits of the matter. Obviously, as already stated above the object of the plaintiff is only to set aside the judgment passed by this Court on 22.12.2017 effectively on merits, and which is not within the purview of a review petition once the judgment dated 22.12.2017 is a detailed judgment giving reasons for dismissal of the suit.