Ds Confectionery Products Limited v. Nirmala Gupta and Anr

judgment procedure in the Commercial Court Act, 2015 is to ensure disposal of commercial disputes in a time-bound manner. In fact, the applicability of Order XIIIA, CPC to commercial disputes, demonstrates that the trial is no longer the default procedure/norm.

¶91Rule 3 of Order XIIIA, CPC, as applicable to commercial disputes, empowers the Court to grant a summary judgement against the defendant where the Court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. The expression "real" directs the Court to examine whether there is a "realistic" as opposed to "fanciful" prospects of success. This Court is of the view that the expression "no genuine issue

requiring a trial" in Ontario Rules of Civil Procedure and "no other compelling reason…..for trial" in Commercial Courts Act can be read mutatis mutandis. Consequently, Order XIIIA, CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result.

¶92Accordingly, unlike ordinary suits, Courts need not hold trial in commercial suits, even if there are disputed questions of fact as held by the Canadian Supreme Court in Robert Hryniakv. Fred Mauldin, 2014 SCC OnLine Can SC 53, in the event, the Court comes to the conclusion that the defendant lacks a real prospect of successfully defending the claim."

¶27In view of the above, the plaintiff has been able to make out a case for grant of prayers made in paragraph 69 (i) to (vi) and

(viii) of the Plaint.

¶28As far as the relief of damages and rendition of accounts is concerned, this Court in Intel Corporation v. Dinakaran Nair &Ors., 2006 SCC OnLine Del 459 has held as under: "13. The only other question to be examined is the claim of damages of Rs. 20 lakh made in para 48(iii) (repeated) of the plaint. In this behalf, learned Counsel has relied upon the judgments of this Court in Relaxo Rubber Limited v. Selection Footwear, 1999 PTC

(19)

578; Hindustan Machines v. Royal Electrical Appliances, 1999 PTC (19) 685; and CS (OS) 2711/1999, L.T. Overseas Ltd. v. Guruji Trading Co., 123 (2005) DLT 503 decided on

7.9.2003. In all these cases, damages of Rs. 3 lakh were awarded in favour of the plaintiff. In Time Incorporated v. Lokesh Srivastava, 2005 (30) PTC 3 (Del) apart from compensatory damages even punitive damages were awarded to discourage and dishearten law breakers who indulge in violation with impunity. In a recent judgment in Hero Honda Motors Ltd. v. Shree Assuramji Scooters, 125 (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."

¶29In the case of Hindustan Lever Ltd. and Anr v. Satish Kumar, 2012 SCC OnLine Del 1378, this Court again held as under: "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."

¶30Applying the above principles and taking into account the fact that the defendants failed to appear before this Court despite service, the plaintiff is found entitled to damages of a sum of Rs. 2,00,000/-.

¶31The plaintiff shall be entitled to a decree as to costs as well. RELIEF

¶32Accordingly, a decree of permanent injunction in terms of the prayers mentioned in paragraph 69 (i) to (vi) and (viii) of the Plaint is passed in favour of the plaintiff and against the defendants.

¶33Damages of Rs. 2,00,000/- are granted in favour of the plaintiff and against the defendants. The plaintiff is also entitled to the costs of the suit.

¶34Let a decree-sheet be drawn accordingly.

NAVIN CHAWLA, J. NOVEMBER 22, 2022/DJ

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 03.11.2022 Date of decision:22.11.2022 + CS(COMM) 176/2020 DS CONFECTIONERY PRODUCTS LIMITED ..... Plaintiff Through: Ms.Vaishali Mittal, Mr.Rohin Koolwal, Advs. versus NIRMALA GUPTA AND ANR ..... Defendants Through: None. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present suit has been filed by the plaintiff praying for a decree of permanent injunction against the defendants restraining them from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with confectionery products and/or any other goods and services including but not limited to hard flavoured candies and/or fruit candies and/any other goods and services using the trade mark PELSE/ , the trade mark as also trade dress for PLUS++/ under the SNEH trading style or any other trademark, containing the plaintiff"s trademark and copyright in PULSE/ , or any other mark deceptively similar thereto, which would amount to either infringement, passing off, dilution, unauthorised representation or unfair competitions. The plaintiff further prays for delivery up, rendition of accounts, costs and damages. 2. Vide order of this Court dated 20.08.2020, the defendants were proceeded with ex-parte in the present suit. 3. It is the case of the plaintiff that it is a part of the Dharampal Satyapal Group, a diversified conglomerate founded in the year 1929, and is engaged in the business of food and beverage products, confectionery, hospitality, mouth fresheners, paan masala, tobacco, agro forestry, rubber threads, infrastructure and dairy segments. The plaintiff asserts that it has been a leading industrial player creating premium high-quality products for a wide range of consumers in India as well as internationally. Across the multiple sectors of industry that the plaintiff conducts its business in, it is recognized as a market leader in traditional natural mouth fresheners as also mini chewing gums, adopting trade names such as, "Catch", "Pass-Pass", "Tulsi", "Rajnigandha" and "Chingles". 4. The plaintiff"s goods under the trademark PULSE and the trade-dress associated with its product PULSE along with the "Kachcha Aam" flavoured candy, written as "Kachcha Aam with Tangy Twist", marked the plaintiff"s foray into the candy product segment. The candy product was conceptualized around early 2013 and introduced for sale to the general public in December, 2014.The trade mark and packaging of the PULSE candy along with its trade-dress is reproduced hereinbelow: 5. The plaintiff also launched its candy bearing the trade mark PULSE/ in four different flavours- Guava and Orange in the year 2016; Pineapple and Litchi in the year 2017. The plaintiff further launched a sweetened drink as also a "no salt, sugar free" variant of the candy, both bearing the trade mark PULSE/ . 6. The plaintiff gives details of its expenditure regarding the advertisements and promotion between the years 2014 to 2018 of its trade mark PULSE/ in paragraph 16 of the plaint. 7. The plaintiff also gives its sales figures of the products under the PULSE trademark for the period 2014-2015 to 2017-2018, in paragraph 18 of the plaint, with the sales rising from Rs. 1.89 Crore to Rs. 329.17 Crore during this period. 8. The plaintiff gives the details of the registrations granted/applied for its trade marks, as under: Trade mark Applicat ion No. Trademark Class User Date Date of Application Status 2827909 01.04.2013 16.10.2014 Registered 3071704 01.04.2013 07.10.2015 Registered 3071705 01.04.2013 07.10.2015 Registered 2891666 01.04.2013 29.01.2015 Opposed 2827906 PULSE (word) 01.04.2013 16.10.2014 Opposed 9. The plaintiff asserts that its mark has also been registered/applied for in other countries, details whereof are given in paragraph 22 of the Plaint. 10. The plaintiff also submits that this Court in its judgment dated 17.10.2019, titled Dharampal Satyapal Sons Private Limited v. Mr. Akshay Singhal & Ors., CS(COMM) 1