Back
2010 (3) GCD 2250 (Guj)
Hon’ble Mr. Justice K.A. Puj
Hind Mosaic and Cement Works & Anr.
Versus
Shree Sahjanand Trading Corporation & Anr.
Civil Application No. 178 of 20091—Decided on 06/05/2009
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 6 Rule 17 — Patents Act, 1970 — Section 108 — Amendment in plaint — Seeking to incorporate prayer for compensation — Objection that prayer could not be granted because plaintiff has already opted for accounts of profit — Sustainability — Held, plaintiff can not be estopped to claim damages at a subsequent stage — Further due diligence theory does not come in way of plaintiffs for moving the impugned application to seek amendment to incorporate prayer for compensation.
Held :
Normally, the plaintiff claims an account of profits along with an injunction in the suit, as it happens in the present case. This, however, does not estopps the plaintiff to claim damages at a subsequent stage, in any case, before the judgment is pronounced. Section 108 (1) gives an option to the plaintiff to claim either damages or an account of profits. However, it confers powers on the Court to grant such relief once the plaintiff exercises such option. The plaintiff can take an informed decision only on the basis of detailed inquiry and on production of all necessary materials. The defendants have produced the figures of their turnover only after the Division Bench has directed them to do so. The proper verification and correctness of such figures are yet to be made. Under these circumstances, if the plaintiffs move the present application so as to enable them to have, an option either to claim damages or an account for profits, the same cannot be objected to on the ground that the plaintiffs have, already exercised an option by claiming an account of profits, at the time of filing of the suit. [Para16]
From the facts discussed and circumstances narrated above, it is difficult to arrive at the conclusion that inspite of due diligence, the plaintiffs could not have raised the plea regarding claim of damages before the commencement of trial. The sales figures duly certified by the Chartered Accountants on 22.10.2008 and 30.04.2009 are produced only on 05.05.2009, that too, after the amendment application filed by the plaintiffs. Thus, the due diligence theory would not come in the way of the plaintiffs from moving such application nor it would come in the way of the Court from granting such relief.
[Para 18]
Law Laid Down :
In a suit for infringement of trade mark plaintiff is entitled to elect between damages and accounts of profits after the liability of defendant is decided by Court.
K.A. Puj, J.—The plaintiffs have filed this Application seeking amendment in the plaint of the Suit as well as in the prayer Clause after Para 24(A) which reads as under—
“The plaintiffs have suffered enormous loss due to the illegal manufacture and sale of the infringing products by the defendant No. 2. At the cost of the plaintiffs the defendant No. 2 is earning profit by effecting illegal sales of infringing products. The sales by the defendant No. 2 has created confusion in the market. The defendant No. 2 is continuing to sell the infringing products even during the pendency of the above suit However the plaintiffs have suffered loss in form of loss of opportunity and enormous expenditure incurred for the purpose of litigation against the defendant No. 2. The plaintiffs are entitled to recover the said cost already incurred by him and future; cost that may be incurred by the plaintiffs for the litigation in future along with compensation for other losses suffered. Now the plaintiffs have got prepared a report by a professional Chartered Accountant who has prepared a report, which gives a loss suffered by the plaintiffs due to the infringement caused by the defendant No. 2, as Rs. 5,20,00,000/-, which is actual and truthful loss suffered by the plaintiffs. Therefore all these facts have unfolded only after filing of the suit and the fact of exact loss was not available to plaintiff. The plaintiffs seek to rely upon the contents of the report of Chartered Accountant, which is attached herewith and which may be read as part of this affidavit.”
2. The plaintiffs also want to add after prayer No. 1 the. prayer No. 2, which reads as under:—
“(ii) pass a judgment and decree awarding a compensation of Rs. 5,20,00,000/- in favour of the plaintiffs for infringing the rights of plaintiffs in respect of Patent 203004 granted by Indian Patent office.”
3. While moving this application for amendment, the case pleaded by the plaintiff is that the plaintiffs have filed Civil Suit No. 1 of 2007 for the reliefs claimed in the plaint. The plaintiffs and the defendants have already led their respective evidences on the issues framed by the Court. While moving this application for amendment the plaintiffs want to make prayer for compensation which, despite best efforts and diligence on the part of the plaintiffs, could not be quantified and claimed earlier. The plaintiffs have submitted that Deepak Poddar is the inventor of Patent 203004 and he is the authorized representative of the plaintiff No. 1 and the Director of the plaintiff No. 2. The plaintiffs learnt about the infringement patent 203004 only sometime in the middle of 2007 and immediately on learning about the same, Civil Suit No. l of 2007 for injunction against the defendants was filed. The Court below has granted ex pate order of interim injunction against the defendants thereby restraining the defendants from manufacturing and selling the infringing products. But during the proceedings before, the learned Single Judge of this Court, the said ex parte order came to be vacated. Thereafter, the Division Bench of this Court has again restored the said interim injunction. In a subsequent proceedings before the Hon’ble Supreme Court, the matter came to be remitted back to the Division Bench of this Court for fresh consideration. Thereafter, as per the joint memo submitted before the Division Bench the trial of the matter started. Thus, the proceedings came to be prolonged for quite some. time. Initially the plaintiffs had no information about the quantum of sales of infringing product by the defendant No. 2. The Division Bench in fact gave, specific direction to the defendant No. 2 to render accounts of sales of infringing products which is totally and deliberately disobeyed by the defendants. Now the plaintiffs have got report from professional Chartered Accountant who has prepared a report which gives a loss suffered by the plaintiffs due to the infringement caused by the defendan
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
