Indiabulls Consumer Finance Limited & Anr v. Www.Dhanifinance.Com & Ors

judgment in Hero Honda Motors Ltd. v. Shree Assuramji Scooters,

(2005) DLT 504 this Court has taken the view that damages in such a case should be awarded against defendants who chose to stay away from proceedings of the Court and they should not be permitted to enjoy

the benefits of evasion of Court proceedings. The rationale for the same is that while defendants who appear in Court may be burdened with damages while defendants who chose to stay away from the Court would escape such damages. The actions of the defendants result in affecting the reputation of the plaintiff and every endeavour should be made for a larger public purpose to discourage such parties from indulging in acts of deception.

¶14A further aspect which has been emphasised in Time Incorporated case (supra) is also material that the object is also to relieve pressure on the overloaded system of criminal justice by providing civil alternative to criminal prosecution of minor crimes. The result of the actions of defendants is that plaintiffs, instead of putting its energy for expansion of its business and sale of products, has to use its resources to be spread over a number of litigations to bring to book the offending traders in the market. Both these aspects have also been discussed in CS(OS) No. 1182/2005 titled Asian Paints (India) Ltd. v. Balaji Paints and Chemicals decided on 10.3.2006. In view of the aforesaid, I am of the considered view that the plaintiff would also be entitled to damages which are quantified at Rs. 3 lakh."

¶35In the case of Hindustan Lever Ltd. and Anr v. Satish Kumar, 2012 SCC OnLine Del 1378, this Court again held as under that: "23. One of the reasons for granting relief of punitive damages is that despite of service of summons/notice, the defendant had chosen not to appear before the court. It shows that the defendant is aware of the illegal activities otherwise, he ought to have attended the proceedings and give justification for the said illegal acts. Since, the defendant has maintained

silence, therefore, the guilt of the defendant speaks for itself and the court, under these circumstances, feels that in order to avoid future infringement, relief of punitive damages is to be granted in favour of the plaintiff."

¶36In Indiabulls Housing Finance Ltd. & Ors. (supra) this Court, on the question of damages, has held as under: "19. Learned counsel for the Plaintiffs has also pressed for punitive damages and cost. Insofar as the award of punitive damages is concerned, I may only refer to a passage from the judgment by a Co-ordinate Bench of this Court in Proctor & Gamble Company v. Joy Creators & Others, 2011 SCC OnLine Del 929, as follows: "27. In Larsen and Toubro Limited v. Chagan Bhai Patel: MIPR 2009 (1) 194, this Court observed that it would be encouraging the violators of intellectual property, if the defendants notwithstanding having not contested the suit are not burdened with punitive damages.

¶28Also, the Court needs to take note of the fact that a lot of energy and resources are spent in litigating against those who infringe the trademark and copyright of others and try to encash upon the goodwill and reputation of other brands by passing of their goods and/or services as those of that well known brand. If punitive damages are not awarded in such cases, it would only encourage unscrupulous persons who actuated by dishonest intention, use the well-reputed trademark of another person, so as to encash on the goodwill and reputation which that mark enjoys in the market, with impunity, and then avoid payment of damages by remaining absent from the Court, thereby depriving the plaintiff an opportunity to establish actual profit earned by him from use of the infringing mark, which can be computed

only on the basis of his account books. This would, therefore, amount to putting premium on dishonesty and give an unfair advantage to an unscrupulous infringer over those who have a bona fide defence to make and therefore come forward to contest the suit and place their case before the Court."

¶20This Court is in agreement with the submissions of learned counsel for the Plaintiffs that in the instant case, punitive damages must be awarded against Defendant No. 1, who has infringed the trademarks as well as the copyright of the Plaintiffs and has attempted to pass off its services as that of the Plaintiffs and has chosen to stay away from the proceedings of the Court, despite service. It has been held in various judgments that a Defendant who chooses to stay away from the Court proceedings, should not be permitted to escape the liability when found guilty of committing a wrongful act. It would be in public interest if parties indulging in acts of deception are penalised by punitive damages, in order to discourage such acts. As a result the Court awards damages to the tune of Rs. 3,00,000/- in favour of the Plaintiffs."

¶37Following the above, the plaintiffs are held entitled to damages to the tune of Rs. 3,00,000/- (Rupees Three Lakh only) from the defendant no. 1.

¶38The plaintiffs shall also be entitled to costs of the suit. RELIEF

¶39Accordingly, a decree of permanent injunction in terms of prayers

(a) to (c) of the plaint is passed in favour of the plaintiffs and against the defendant no. 1. The plaintiffs are held entitled to damages quantified at Rs. 3,00,000/- as also the costs of the suit to be recovered from the defendant no. 1. Let a decree-sheet be drawn accordingly.

¶40The suit and the pending application are accordingly disposed of.

NAVIN CHAWLA, J. OCTOBER 12, 2022/AB

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 22.09.2022 Date of decision: 12.10.2022 + CS(COMM) 675/2019 & I.A.17453/2019 DHANI LOANS AND SERVICES LIMITED & ANR. ..... Plaintiffs Through: Mr.Luv Virmani & Ms.Aadya Chawla, Advs. versus WWW.DHANIFINANCE.COM & ORS. ..... Defendants Through: Ms.Shweta Sahu, Adv.for D-2& 3. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present suit has been filed by the plaintiffs inter-alia seeking a decree of permanent injunction restraining the defendant no. 1, its family members, partners/promoters, directors, servants, agents, franchisees or any one acting for and on their behalf in any manner using the impugned trade mark/logo or the domain name www.dhanifinance.com or any identical or deceptively similar trade mark/name/logo or domain name either as a trade mark, trading style, logo, domain name or in any other manner which is identical or deceptively similar to the plaintiffs' trade marks 'DHANI' or the 'POTLI' device stand-alone or in any combination thereof and/or domain name www.indiabullsdhani.com, in relation to any services especially for financial and transaction services and assistance thereto. 2. The plaintiffs further prayed for a direction to the defendant nos. 2 and 3 to provide all the details of the registrant of the domain name of the defendant no. 1; including the name, address, contact number, e-mail ID, including its whereabouts and other such relevant details disclosing the identity of the registrant of the domain name of the defendant no. 1, along with the Internet Protocol (in short, 'IP') address of the domain name of the defendant no.1. 3. As far as the defendant nos.2 and 3 are concerned, vide order of this Court dated 22.09.2022, while passing certain directions, with the consent of the plaintiffs and the defendant nos. 2 and 3, they were deleted from the array of parties. 4. As far as the defendant no. 1 is concerned, it was proceeded ex- parte vide order of this Court dated 22.08.2022. The defendant no. 1, despite service, had neither entered appearance in the suit nor filed its written statement. FACTUAL BACKGROUND 5. It is the case of the plaintiffs that the plaintiffs are a part of the Indiabulls Group, which has been providing financial services in India as well as internationally since the year 1994. The Indiabulls Group, as on 31.03.2018, had a combined revenue of over Rs. 22,114.9 Crore (Rupees Twenty-Two Thousand One Hundred Fourteen and Nine Crore only) and PAT of Rs. 6,072.2 Crore (Rupees Six Thousand Seventy-Two and Two Crore only). The plaintiff no. 1 alone had a combined revenue of over Rs. 1650 Crore (Rupees One Thousand Six Hundred Fifty Crore only) and PAT of over Rs. 400 Crore (Rupees Four Hundred Crore only) as on 31.03.2019. 6. The plaintiffs assert that the plaintiff no. 1 is a non-banking finance company and is a wholly owned subsidiary of the plaintiff no. 2. The plaintiff no. 1 is inter-alia engaged in the business of providing personal loans, business loans and various other financial facilities through its array of products. 7. It is further asserted that the plaintiff no. 2 is one of India's leading capital market companies providing securities and derivative brokering services. The plaintiff no. 2 was the first company to be assigned a BQ-1 Grading by the CRISIL, which is the highest broker quality grading. Brickworks Ratings has also assigned a strong credit rating of BWR A+ and BWR A1+ for the plaintiff no.2's fund and non-fund-based facilities. 8. The plaintiffs further assert that in September 2017, the plaintiffs launched its services for 'IndiabullsDhani' and along with the domain name www.indiabullsdhani.com, a mobile and web-based loan application developed to offer personal financing solutions. The mobile application, 'Indiabullsdhani" was ranked as among the top three downloaded mobile applications in the financial services sector, having more than 11.5 million downloads as of September 2018. 9. It is asserted that t