Samsung Electronics Company Ltd. and Anr v. Mr. Gyanji Choudhary and Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 07, 2016 "gsr"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th September, 2016 + CS(OS) 1602/2006 SAMSUNG ELECTRONICS COMPANY LTD. AND ANR. ..... Plaintiffs Through: Mr. Pravin Anand, Adv. Versus MR. GYANJI CHOUDHARY AND ANR. ..... Defendants Through: Ms. Sunita Arora, Adv. for D-2. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This suit has been listed today in terms of order dated 11th August, 2016 of the Joint Registrar and owing to the witness of the plaintiffs having not appeared inspite of earlier order dated 30th July, 2015 of this Court. 2. Issues in this suit for permanent injunction, to restrain the defendant no.1 Gyanji Choudhary, carrying on business as proprietor of defendant no.2 Metro Technologies from importing, exporting, distributing, selling, offering for sale, advertising or dealing in grey market ink cartridges / toners or any other products of the plaintiffs under the trade mark "SAMSUNG" or under any other mark deceptively similar to the plaintiffs" trademark and for ancillary reliefs, were framed as far back as on 5th November, 2008 and the onus of the main issue was on the plaintiffs; the plaintiffs were directed to file affidavits by way of examination-in-chief of all their witnesses within 10 weeks and the suit posted before the Joint Registrar on 16th January, 2009 for fixing dates for cross-examination of the witnesses of the plaintiffs. 3. The order dated 16th January, 2009 records that neither any list of witnesses for which time had been given on 5th November, 2008 had been filed nor any affidavits by way of examination-in-chief had been filed by the plaintiffs. On request, further time of four weeks was given to the plaintiffs by way of last and final opportunity and the suit adjourned to 1st July, 2009 for recording of cross-examination of the witnesses of the plaintiffs. 4. The order dated 1st July, 2009 records that neither list of witnesses nor affidavits by way of examination-in-chief of any witnesses had been filed inspite of last opportunity. Accordingly, the learned Joint Registrar directed the suit to be placed before the Bench on 29th July, 2009. 5. On 29th July, 2009, on the request of the counsel for the plaintiffs and subject to payment of cost, again a "last opportunity" was granted to the plaintiffs to file list of witnesses and affidavits by way of examination-in- chief of all their witnesses within six weeks and the suit posted before the Joint Registrar on 12th October, 2009. 6. On 12th October, 2009, though cost earlier imposed was paid but no affidavit by way of examination-in-chief had been filed till then. Adjournment was sought on the ground of the plaintiffs having moved an application under Order I Rule 10 CPC but which had not been listed. Recording that the same was not a ground for not complying with the earlier order but ignoring that the Bench had vide order dated 29th July, 2009 granted only one opportunity, another opportunity was given to the plaintiffs subject to payment of further costs and the suit adjourned to 5th March, 2010 for cross-examination of the witnesses of the plaintiffs. 7. The order dated 5th March, 2010 records that neither cost had been paid nor affidavits by way of examination-in-chief filed nor was any witness present in the Court. Still, further time of eight weeks was granted for filing the affidavits and the suit posted to 25th October, 2010. 8. On 25th October, 2010, the learned Joint Registrar was on leave and the suit posted to 5th January, 2011 which was a holiday and the matter was taken up on 6th January, 2011. 9. By 6th January, 2011 also no affidavits by way of evidence had been filed and the suit was listed before the Bench on 8th February, 2011. 10. The order of 8th February, 2011 records that still no affidavits by way of examination-in-chief were filed; however subject to payment of further costs another last opportunity was granted to file the affidavits within two weeks and it was ordered, failing which the evidence of