Roderick John Andrew Mackenzie v. Himalayan Heli Services Private Ltd

judgment of Robert Goff, J. in Amalgamated Investment & Property Co. Ltd. v. Texas Commerce International Bank Ltd.[1982 QB 84 : (1981) 3 WLR 565 : (1981) 3 All ER 577 (CA)] Whether all five of those probanda are necessary or not, Mr Aldous submits that to succeed HBZ must at least establish three things. They must show, first, that HBZ have been acting under a mistake as to their legal rights. That, in the instant case, must mean

that they were unaware that what they were doing (that is to say, carrying on their business under the name in which they had been incorporated with the active assistance of the plaintiffs' predecessors), constituted any invasion of the plaintiffs' rights. Secondly, they must show that the plaintiffs encouraged that course of action, either by statements or conduct. Thirdly, they must show that they have acted upon the plaintiffs' representation or encouragement to their detriment.

¶45Noticing various other decisions, Oliver, L.J., noticing a decision in Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1982 QB 133 : (1981) 2 WLR 576 :

(1981) 1 All ER 897] opined [Ed.: Quoting from Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd.,

(1981) 1 All ER 897, pp. 915j-916a.] : (Habib Bank case [(1981) 1 WLR 1265 : (1981) 2 All ER 650 (CA)] , All ER p. 666h-j) "Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson [(1866) LR 1 HL 129 (HL)] principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."

It was held: (Habib Bank case [(1981) 1 WLR 1265 : (1981) 2 All ER 650 (CA)] , All ER p. 668c-e) "I have to acknowledge my indebtedness to counsel on both sides for some illuminating arguments, but at the end of them I find myself entirely unpersuaded that the judge erred in any material respect. He concluded his judgment in this way on the question of estoppel: 'Of course, estoppel by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable that he should be entitled to succeed in the proceeding.' That, to my mind, sufficiently appears on the facts of this case." Thus, in cases involving equity or justice also, conduct of the parties has also been considered to be a ground for attracting the doctrine of estoppel by acquiescence or waiver for infringement.

¶46This Court also in Power Control Appliances v. Sumeet Machines (P) Ltd.[(1994) 2 SCC 448] held: (SCC p. 457, para 26) "26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name, etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White[(1860) 28 Beav 303 : 54 ER 382] Sr. John Romilly said: 'It is important to distinguish mere negligence and acquiescence.' Therefore, acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it

had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. v. Boehm [(1884) 26 Ch D 406] . The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill [(1847) 2 De GM&G 614] ."

¶47The question again came up for consideration before this Court in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel [(2006) 8 SCC 726] wherein it was held: (SCC p. 769, para 103) "103. Acquiescence is a facet of delay. The principle of acquiescence would apply where: (i) sitting by or allowing another to invade the rights and spending money on it; (ii) it is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc." The delay by itself, however, may not be necessarily a ground for refusing to issue injunction. It was opined: (Ramdev case [(2006) 8 SCC 726] , SCC p. 770, para 106) "106. The defence of acquiescence, thus, would be satisfied when the plaintiff assents to or lays by in relation to the acts of another person and in view of that assent or laying by and consequent acts it would be unjust in all the circumstances to grant the specific relief." It was furthermore observed: (SCC p. 770, para 108) "108. Specific knowledge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. (See Spry on Equitable Remedies, 4th Edn., p. 433.)"

¶48In Halsbury's Laws of England, 4th Edn., Vol. 16, Para 1505, it is stated:

"1505. Estoppel by matter in pais.—Where a person has by words or conduct made to another a clear unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that the other has acted on the representation and thereby altered his position to his prejudice an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be."

¶49Delay would be a valid defence where it has caused a change in the subject-matter and action or brought about a situation in which justice cannot be done.

¶50Mr Desai relied upon Willmott v. Barber [(1881-85) All ER Rep Ext 1779 : (1880) 15 Ch D 96] wherein it is stated: "The equitable doctrine of acquiescence is founded on there having been a mistake of fact; can it be repelled by showing that there was constructive notice of the real facts? In every case in which a man acts under the mistaken belief that he is entitled to land, he might, if he had inquired, have found out that he had no time. And yet the courts appear always to have inquired simply whether a mistake has been made, not whether the plaintiff ought to have made it."

¶51However, in Pfizer Products Inc. v. Rajesh Chopra [(2007) 35 PTC 59 (Del)] , injunction was granted despite delay, stating: "Where infringement is deliberate and wilful and the defendant acts fraudulently with knowledge that he is violating the plaintiff's rights, essential elements of estoppel are lacking and in such a case the protection of the plaintiff's rights by injunctive relief never is properly denied. The

doctrine of estoppel can only be invoked to promote fair dealings.

¶31It would appear to me that where there is an honest concurrent user by the defendant then inordinate delay or laches may defeat the claim of damages or rendition of accounts but the relief of injunction should not be refused. This so because it is the interest of the general public, which is the third party for such cases, which has to be kept in mind. In the case of inordinate delay or laches, as distinguished from the case of an acquiescence, the main prejudice which may be caused to the defendant is that by reasons of the plaintiff not acting at an earlier point of time the defendant has been able to establish his business by using the infringing mark. Inordinate delay or laches may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiff's business. Nevertheless, if the court comes to the conclusion that prejudice is likely to be caused to the general public who may be misled into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued. The court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied."

¶52In Mc Donald's Corpn. v. Sterling's Mac Fast Food [ILR 2007 Kant 3346] the Karnataka High Court held: "9. Though the plaintiff adopted its registered trade mark big mac in 1968 in USA, in Para 7 of memorandum of appeal it is stated as under: '7. The first appellant is the proprietor in India of other McFamily trade marks having prefix or suffix Mc/Mac and it has also applied for registration and most of them were registered

during the pendency of the suit and the trade marks are used in India since October 1996.' From the above, it is clear that the plaintiffs are using their trade marks in India since October 1996. However, in the very next paragraph it is stated as under: '8. The first appellant was given approval on 15-2-1993 by the Government of India to operate a chain of restaurants in India. The second appellant was incorporated and registered with the Registrar of Companies on 30-8-1993 vide (Ext. P-30).' It is thus clear that the plaintiffs got registered in India in the year 1993 only. On the other hand, the defendant has been carrying on with its business since 1983. Having started business by the plaintiffs much later than the defendant in India, the plaintiffs cannot find fault with the defendant in using its trade mark in its business."

14.6. Thus if a plaintiff stands by ignoring the use of the mark by the defendant, the plaintiff would not be entitled to the relief of injunction due to the acquiescence by the plaintiff. In the present case, plaintiff permitted defendant to use part of the logo i.e. triangle depicting the mountain with the clouds when plaintiff was a part of defendant No.1.

14.7. As the plaintiff was also the user of the artistic work with the defendant No.1, he cannot be said to have acquiesced in the use of the artistic work i.e. mountain depicted as a triangle with the clouds.

¶15Issue No.(v): Whether the suit is barred by limitation and laches?(OPD)

15.1. The two artistic works were being used by Himlayan Heli Services as a joint venture of the defendant when plaintiff was also a part thereof. As

per the defendant disputes arose between the parties in the year 2006, the copyright registration was granted in favour of plaintiff on 28th January, 2008 and the present suit had been instituted in the year 2009. Thus, it cannot be held that the suit is barred by delay and laches.

15.2. Thus issue No.(v) is decided in favour of the plaintiff and against the defendant.

¶16Issue No. (i): Whether the Plaintiff is entitled to permanent injunction to restrain the Defendant from using the artistic work 'HIMALAYAN HELI SERVICES'?(OPP)

16.1. Contention of learned counsel for the plaintiff is that the plaintiff being the owner of the two artistic works which fact has been proved by the plaintiff by leading evidence and through the admission of the defendant the plaintiff is entitled to a decree of injunction against the defendant. Learned counsel for the defendant on the other hand contends that the two logos were designed by the defendant and plaintiff has never used the same and it has always been using the logo of a mountain with triangle with the ski trail and the clouds. Hence despite there being registration in favour the plaintiff, the defendant having acquired goodwill in the same, the plaintiff cannot seek an injunction. In view of suppression of material facts, false statements on oath and also by virtue of acquiescence of the plaintiff, no relief be granted.

16.2. As noted above this Court has already held that the plaintiff has no copyright in the artistic works for which he has been granted registration vide registration Nos.A-81931/2008 and A-81932/2008 hence he is not entitled to any injunction qua the said copyrights.

16.3. Further the relief of injunction is a discretionary relief, and a person who suppresses material facts would not be entitled to the same as held in

(2006) 7 SCC 756 Jai Narain Parasrampuria v. Pushpa Devi Saraf: "Discretionary relief

¶84Both the parties hereto are guilty of serious misconduct. Both of them have abused the process of court. They initiated unnecessary nay frivolous proceedings against each other. Both the parties took recourse to abuse of judicial process against the other upon suppression of material fact, which would amount to fraud on court. The question in regard to exercise of discretionary jurisdiction for grant of a decree of specific performance of contract, as envisaged under Section 20 of the Specific Relief Act, must be considered from the said angle.

¶86Balancing of equities in a case of this nature is a difficult task. It is now well settled that compensation can be awarded in lieu of grant of decree of specific performance of contract. The courts are now evolving separate principles in regard to the remedy of compensation. (See Snells' Equity, p. 452.) The learned author cites various cases to make home the point stating:

"18-17. A monetary award which is made in substitution for (or in addition to) non-monetary relief will frequently be determined on the basis of pecuniary performance or pecuniary rescission; but, in some cases, may also be determined by reference to the loss which has been suffered.

18-18.

(a) Pecuniary performance.—Pecuniary performance is a money substitute for the thing which the defendant would have been required to do, had specific relief been ordered. It is to be determined by identifying the difference between two values: (i) the value of the claimant's right to performance of the obligation, and (ii) the value of the performance which the defendant is able

to give. Where the defendant is not able to perform the obligation, the amount of the award will represent the value of the claimant's right to performance: in such a case, an order for pecuniary performance will be for a sum corresponding with the value of the claimant's right to performance. The position is similar where the court declines to grant non-monetary relief and thereby (in effect) releases the defendant from the need to perform the obligation in the future."

¶87In Spry's Equitable Remedies, it is stated:

"In considering what circumstances induce the court, as a matter of discretion, to award equitable damages rather than relief in specie it must be borne in mind that when once the general conditions for the exercise of equitable jurisdiction have been established, that is, the inappropriateness of damages in respect of a matter coming within a recognised head of relief, prima facie there arises a right to specific performance or to an injunction, as the case may require. So it was observed by Lord Langdale, 'I conceive the doctrine of the court to be this, that the court exercises a discretion, in cases of specific performance, and directs a specific performance unless it should be what is called highly unreasonable to do so'. Similarly reference has been made to 'the rule that where the plaintiff has established the invasion of a common law right, and there is ground for believing that without an injunction there is likely to be a repletion of the wrong, he is, in the absence of special circumstances, entitled to an injunction against such repetition'. On the one hand it is clear that the passage of provisions for equitable damages did not affect these general principles. So it has been affirmed that the authorities show 'that Lord Cairns' Act did not revolutionise the principles upon which the equitable jurisdiction had been administered up to that time and that some special case must be shown before the court should exercise the jurisdiction under the Act'. On the other hand, in cases where an injunction or an order of

specific performance would be granted if there were no power to grant damages the statutory power of the court to award damages may, in special circumstances, be of critical weight. It may induce the court to conclude that any inconvenience or hardship which would be caused to the plaintiff if he were obliged to accept merely an award of damages would be so far outweighed by the hardship that would be caused to the defendant if specific enforcement were granted that damages constitute the most appropriate remedy. Hence where the court would otherwise have granted specific relief the importance of a power to grant equitable damages is found to lie primarily in its relation to considerations of hardship between the parties and to the balance of convenience."

¶88In Gillett [(2000) 2 All ER 289 : (2000) 3 WLR 815 (CA)] it was pointed out: (All ER p. 311 b-c)

"Since Mr Gillett has established his claim to equitable relief, this Court must decide what is the most appropriate form for the relief to take. The aim is (as Sir Arthur Hobhouse said in Plimmer v. Mayor of Wellington [(1884) 9 AC 699 (PC)] ) to 'look at the circumstances in each case to decide in what way the equity can be satisfied'. The Court approaches this task in a cautious way, in order to achieve what Scarman, L.J. (in Crabb v. Arun DC [(1975) 3 All ER 865 : 1976 Ch 179 : (1975) 3 WLR 847 (CA)] , All ER at p. 880, Ch at p. 198) called 'the minimum equity to do justice to the plaintiff'. The wide range of possible relief appears from Snell's Equity (30th Edn., 1999), pp 641-43."

¶89For the aforementioned purpose it is necessary to have a broad approach, as was observed in Gillett [(2000) 2 All ER 289: (2000) 3 WLR 815 (CA)] . Therein it was further held: (All ER p. 312 h-j)

"That is in my view the maximum extent of the equity. The court's aim is, having identified the maximum, to form a view as to what is the minimum required to satisfy it and do

justice between the parties. The court must look at all the circumstances, including the need to achieve a 'clean break' so far as possible and avoid or minimise future friction (see Pascoe v. Turner [(1979) 2 All ER 945 : (1979) 1 WLR 431

(CA)] , All ER at p. 951, WLR at pp. 438-39)."

¶90In Malhotra v. Choudhury [(1979) 1 All ER 186 : (1978) 3 WLR 825 : 1980 Ch 52 (CA)] , Stephenson, L.J., in the fact situation obtaining therein, opined:

"But as counsel for the plaintiff pointed out, the question which the judges were summoned by their Lordships to answer and which was proposed for their consideration was 'Whether, upon a contract for the sale of real estate, where the vendor, without his default (my emphasis), is unable to make a good title, the purchaser is by law entitled to recover damages for the loss of his bargain?' That is the question which was answered in the judgment of Pollock, B., which was also the judgment of Kelly, C.B., Keating and Brett, JJ, and the question as it was stated by both Denman, J. and Pigott, B. I note this is the way in which the rule is stated in Williams on Contract of Sale of Land, cited by Megarry, J. in Wroth v. Tyler [1974 Ch 30 : (1973) 1 All ER 897: (1973) 2 WLR 405 (Ch D)] :

'Where the breach of contract is occasioned by the vendor's inability, without his own fault (my emphasis), to show a good title, the purchaser is entitled to recover as damages his deposit, if any, with interest, and his expenses incurred in connection with the agreement, but not more than nominal damages for the loss of his bargain.'

It is not necessary to decide how far the words 'without his default' go, if I am right in thinking that inability without default is what one has to consider as attracting the rule in Bain v. Fothergill [(1874-80) All ER Rep 83 : 31 LT 387 (HL)] .

There may be cases in which there has been no lack of bona fides, yet the rule in Bain v. Fothergill [(1874-80) All ER Rep 83: 31 LT 387 (HL)] has been excluded. I would not however venture to suggest that anything less than lack of good faith could exclude the rule. But it seems from later decisions that fraud, in the full sense of that word such as would found an action for deceit, may not be necessary to exclude the rule. No doubt Blackett-Ord V-C had in mind that fraud must be strictly alleged and proved in all ordinary circumstances. But in my judgment, unwillingness to use best endeavours to carry out a contractual promise is bad faith, and for there to be bad faith which takes the case out of this exceptional rule it is not necessary that there should be either a deliberate attempt to prevent title being made good or anything more than the unwillingness which I find it inevitable to infer in this case. If a man makes a promise and does not use his best endeavours to keep it, it cannot take much and, in my judgment, may not need more to make him guilty of bad faith and to entitle the victim of his bad faith to his full share of damages to compensate him for what he has lost by reason of that breach of contract and bad faith."

¶91Insofar as the principle relating to assessing damages in substitution for an order of specific performance is concerned, the learned Judge opined that a court of equity should follow law and address itself to find the proper substitute, stating that the equitable remedy of specific performance has features markedly different from damages at common law for breach of contract. (See also Horsler v. Zorro [(1975) 1 All ER 584 : (1975) 2 WLR 183 : 1975 Ch 302 (Ch D)] .)

¶92Having noticed the law operating in the field vis-à-vis the conduct of the parties, we decline to grant a decree for specific performance of contract and opine that in its stead and place a decree for compensation should be granted."

16.4. Even in the decision reported 2011 (9) SCC 147 Citadel Fine Pharmaceuticals vs. Ramaniyam Real Estate (P) Ltd., Supreme Court

clarified that the plaintiff will not be entitled to discretionary relief because of concealment and held: "57. There is another aspect of the matter also. In the instant case by asking for specific performance of the contract, the plaintiff purchaser is praying for a discretionary remedy. It is axiomatic that when a discretionary remedy is prayed for by a party, such party must come to court on proper disclosure of facts. The plaint which it filed before the court in such cases must state all the facts with sufficient candour and clarity. In the instant case the plaintiff purchaser made an averment in the plaint that the defendant vendor be directed to return the advance amount of Rs 10,00,000 with interest at the rate of 24% from the date of payment of the said amount till the realisation and an alternative prayer to that effect was also made in the prayer clause (c).

¶58However, the fact remains that prior to the filing of the suit the defendant vendor returned the said amount of Rs 10,00,000 by its letter dated 4-9-1996 by an account payee cheque in favour of the plaintiff and the same was sent to the plaintiff under registered post which was refused by the plaintiff on 6-9-1996. The plaintiff suppressed this fact in the plaint and filed the suit on 9-9-1996 with a totally contrary representation before the court as if the amount had not been returned to it by the vendor. This is suppression of a material fact, and disentitles the plaintiff purchaser from getting any discretionary relief of specific performance by the court.

¶59In this connection we may refer to the Principle of Equitable Remedies by I.C.F. Spry, (4th Edn., Sweet & Maxwell, 1990). Dealing with the question of "clean hands" the learned author opined that where the plaintiff is shown to have materially misled the court or to have abused its process, or to have attempted to do so, the discretionary relief of specific performance can be denied to him. In laying down this principle, the learned author relied on a decision of the English Court in Armstrong v. Sheppard & Short Ltd. [(1959)

2 QB 384 : (1959) 3 WLR 84 : (1959) 2 All ER 651 (CA)] , QB at p. 397. (See Spry, Equitable Remedies, p. 243.)

¶60This Court has also taken the same view in Arunima Baruah v. Union of India [(2007) 6 SCC 120] . At p. 125, para 12 of the Report, this Court held that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact. This Court, of course, held that what is a material fact, suppression whereof would disentitle the suitor to obtain a discretionary relief, would depend upon the facts and circumstances of each case. However, by way of guidance this Court held that a material fact would mean that fact which is material for the purpose of determination of the lis.

¶61Following the aforesaid tests, this Court is of the opinion that the suppression of the fact that the plaintiff refused to accept the cheque of Rs 10 lakhs sent to it by the defendant under registered post with acknowledgment due in terms of Clause 9 of the contract is a material fact. So on that ground the plaintiff purchaser is not entitled to any relief in its suit for specific performance."

16.5. In view of the plaintiff not having been able to prove that he is the creator/ owner in the two marks as a whole and due to the suppression of material facts by the plaintiff, this Court finds that no relief of injunction can be granted in favour of the plaintiff.

16.6. Thus issue No.(i) is also decided against the plaintiff and in favour of the defendant.

¶17Relief:

17.1. From the discussion as aforesaid, the plaintiff is neither entitled to the relief of injunction, nor damages nor delivery of the infringing material to the plaintiff. The suit is accordingly dismissed.

Crl. M.A.5011/2009 (under Section 340 Cr.P.C.) in CS(OS) 210/2009

¶1By this application the applicant had sought action under Section 340 Cr.P.C. and inquiry against the plaintiff for making false averments on oath, by virtue of which it was granted an ex-parte order in its favour. According to the applicant, the following statements of the plaintiff/non-applicant are false: i. The Plaintiff falsely stated that the Plaintiff is carrying on the business under the name and style of 'Himalayan Heli Services'; whereas the Plaintiff had never carried on any business under the name and style of 'Himalayan Heli Services'. ii. The Plaintiff in para 6 of the Plaint falsely described the Defendant as "Defendant is located in New Delhi and claims to a private limited company in India and claims to be engaged in the business of conducting helicopter operations, whereas the correct position is that the Plaintiff had regular business dealings with the Defendant since 2000 and its promoters and holding Company of the Defendant Company since 1988 and was aware of the existence of Defendant Company since the year 1998 i.e. the year of its incorporation; iii. The Plaintiff falsely stated that the Defendant had dishonestly and fraudulently adopted and imitated the name and mark i.e. 'Himalayan Heli Services' and alleged the same to be the trademark/name of the Plaintiff. In this regard it is stated that the Plaintiff was well aware of the use of 'Himalayan Heli Services' by the Defendants since its year of incorporation i.e. 1998 and

had in fact never used the said trademark/name by and/or for the Plaintiff Company. iv. The Plaintiff falsely stated that the adoption of the trademark/name 'Himalayan Heli Services' is causing confusion as the customers of the Plaintiff and Defendants were common. v. The Plaintiff falsely stated in paragraphs 7 and 28 of the Plaint that the Plaintiff has noticed this alleged deceptive adoption by the Defendants only recently on 22-1-2009.

¶2It is trite law that even if the suit is dismissed for concealment of fact, the Court is not bound to mandatorily take action under Section 340 Cr.P.C. Court would be required to take action only when there is gross abuse of the process of law and it is expedient in the interest of justice. In the decision reported as 1998 (12) ACR 50 Syed Asadullah Kazmi Vs. Additional Magistrate D.D.C., the Allahabad High Court held: "10. Applying these elementary rules of interpretation to the provisions of Section 340 of the Code, it is evident that the legislature has couched the provision in such a language that the Court's discretion is circumscribed by the words used. The Court has to consider and weigh the balance of situation to ascertain as to whether in a given case is it 'expedient' in the interest of justice that an enquiry should be made. As an inescapable corollary, in case it is not 'expedient', under the circumstances, enquiry must not be made. The Legislature has deliberately used the word 'expedient' which is adjective according to grammar . This obviously connotes suitable or advisable. This word is also used as noun and means that which serves to promoto or is a suitable to an end. The word 'expediency' also means 'desirableness'. The power of the Court in directing an enquiry to be made or a complaint to be filed in view of the provisions of Section 340 as limited with a condition that it should appear to the Court to be expedient in the interest

of justice to do so. To put it differently, it is only in glaring cases of deliberate falsehood when the Court can direct an enquiry to be made or com-plaint to be filed but this discretion has to be exercised judicially in the light of all the relevant circumstances. Section 340 of the code is not with a view to satisfy personal feelings of vindictiveness. The Court has to be satisfied about the deliberate falsehood as a matter of substance and there must be a reasonable foundation for the charge and it must be expedient in the interest of justice."

¶3Himalayan Heli Services being a joint venture between the parties and indisputably there are registrations in favour of the plaintiff, hence, in view of these peculiar facts of the case this Court finds no ground to proceed under Section 340 Cr.P.C. against the plaintiff/non-applicant.

¶4Application is dismissed.

(MUKTA GUPTA) JUDGE JANUARY 08, 2019 'yo'/'rk'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 10th August, 2017 Decided on: 8th January, 2019 + CS(OS) 205/2009 RODERICK JOHN ANDREW MACKENZIE..... Plaintiff Represented by: Mr.Kirti S. Javali and Ms.Nikita C. Jain, Advocates. Versus HIMALAYAN HELI SERVICES PVT. LTD. ..... Defendant Represented by: Mr. Vivek Malik and Mr.Mukul Thakur, Advocates. + Crl. M.A. No. 5011/2009 in CS(OS) 210/2009 HIMACHAL HELICOPTER SKIING PTY LTD...... Plaintiff Represented by: Mr. Kirti S. Javali, Advocate. versus HIMALAYAN HELI SERVICES PVT. LTD...... Defendant Represented by: Mr.Vivek Malik and Mr.Mukul Thakur, Advocates. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA 1. Roderick John Andrew Mackenzie, the plaintiff in CS(OS) No. 205/2009 filed the suit inter alia seeking permanent injunction restraining the defendants their employees, servants, agents etc. from using or otherwise copying, selling, offering for sale, counterfeit/unlicensed versions of the plaintiff's copyright in his artistic work "HIMLAYAN HELI SERVICES" in any shape, form or manner amounting to infringement of the plaintiff's copyright, damages, rendition of accounts and delivery up of all impugned materials. 2. In the plaint which was filed through the duly appointed special power of attorney of the plaintiff namely Vikrant Singh Jafa, it is stated that the plaintiff is the original author/creator, lawful owner and proprietor of the copyright in the artistic work titled "HIMLAYAN HELI SERVICES" in Australia, India and worldwide. The said copyright has been registered in favour of the plaintiff in India on 28th Jan 2008. It is stated that the defendant is wrongly and illegally using the plaintiff's copyright in the artistic work titled "HIMLAYAN HELI SERVICES" on its websites, letter heads, stationery, business cards etc. It is further claimed that the defendant's logo has an identical get up, layout and features as that of the plaintiff's. Plaintiff has been a mountaineer who has climbed Mount Everest twice in 1984 and 1989 and has extensive experience of numerous expeditions in the Himalayas in India, Nepal, New Zealand, Europe, USA etc. The plaintiff has developed patented technology for the analysis of snow and avalanche prediction and has been involved in research and development for the Defence Research and Development Organization (DRDO) and the Snow and Avalanche Studies Establishment (SASE) in Manali. Besides being the owner of the copyright in the artistic work, plaintiff is also the first user of the aforesaid artistic work within the meaning of the Section 17 of the Copyright Act and entitled to all exclusive rights flowing from such ownership as per Section 15 of the Copyright Act. 3. Defendant is a private limited company claiming to be engaged in the business of conducting helicopter operations. Plaintiff noticed on the internet and elsewhere that the defendant has been infringing the plaintiff's copyright and has titled it as "HIMLAYAN HELI SERVICES" and is using the artistic work of the plaintiff consisting of pictorial representations of the said artistic work with identical shades, lay-out, features, get-up etc. on its websites, letter heads, stationery, business cards etc. Plaintiff also stated that he was the director of Himachal Helicopter Skiing Private Limited which has other matters in issue with the defendant, however, the present suit relates only to the copyright infringement arising out of the international right of the plaintiff. It is claimed that the defendant is infringing the artistic work of the plaintiff by means of posting the insignia in the various exhibitions, galleries, newspaper etc both in Delhi and Trans border. 4. Pursuant to summons being issued, written statement was filed on behalf of the defendant through its Director T. Wangchuk Shamshu. In the written statement preliminary objections were taken particularly in respect of suppression of material facts. It was stated that the defendant company i.e. Himlayan Heli Services Priva