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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, N.SESHASAYEE, JJ.
Rubinetterie Bresciane Bonomi SpA - Appellant
Vs.
M/s. Lehry Instrumentation & Valves Pvt. Ltd. - Respondent
O.S.A.No.252 of 2018 and CMP.No.12022 of 2018 and CMP.No.12023 of 2018 in OSA.No.SR33496 of 2018
Decided On : 31-01-2019
Civil Procedure Code - Section 15 - Order 36 - Rule 9 - Commercial Courts Act - Condone the delay - Trial proceedings - Evidence to prove - An action for passing off and other allied reliefs a suit was instituted by appellant in appellant is an Italian company which is involved in manufacture and sale of brass ball valves and other kinds of valves and fittings - It was marketing its products under trademark with a design mark enclosing within it letters ‘R’ and ‘B – Since respondent has been a major associate of appellant and has been marketing its products in India – Held, It might be true that any right of action takes with it right to participate in trial produce necessary evidence to prove or to defend a cause of action and that right to participate in trial without right to produce evidence might reduce it to a cosmetic or an ornamental right. And, where effective right to participate in trial proceedings is affected by an interim Order in a given circumstance it may even taint a proceeding with unfairness – However Orders in question do not go that far and are in effect made while regulating trial proceedings - They therefore do not qualify to be termed ‘judgment - A right of appeal under Clause 15 of Letters Patent is available from all Orders passed in any proceedings in any suit pending on date of commencement of Commercial Courts Act - So far as present two appeals are concerned, since they do not constitute ‘judgments’ within the meaning of Clause 15 of the Letters Patent, no appeal is maintainable against them - In the course of his arguments learned counsel for appellant has submitted that evidence both documentary and oral that are now produced and rejected, are essential to defend suit instituted by the respondent - But then that necessity opens only when respondent discharges its burden in its suit, and it depends on the quality of evidence that the respondent may chose to produce in aid of the cause of its action - May be, for procedural convenience appellant might have anticipated it and might have attempted to produce some contra evidence perhaps without anything substantial to counter at this moment – That at any rate cannot take away appellant’s right to defend an action when respondent in its suit actually discharges its initial burden -And Orders now impugned cannot pre-empt what might arise in future, as there cannot be any anticipatory foreclosure of right to lead in evidence that may not endanger or offend the right to defend an action in a manner in which adversarial jurisprudence that Court have adopted has come to recognize and accept - petition is closed
JUDGMENT :
N. SESHASAYEE, J.
Prayer : Original Side Appeal filed under Order 36 Rule 9 of Original Side Rules r/w. Section 15 of Letters Patent, against the order and decretal order dated 14.03.2018 passed in Application No.8007 of 2017 in C.S.No.405 of 2014 on the file of Commercial Division of the High Court of Madras.
1.1 An action for passing off and other allied reliefs, a suit was instituted by the appellant in C.S.405 of 2014. The appellant is an Italian company, which is involved in the manufacture and sale of brass ball valves and other kinds of valves and fittings. It was marketing its products under the trademark ‘Rubeinetterie Bresciane” with a design mark enclosing within it the letters ‘R’ and ‘B’. Since 2005, the respondent has been a major associate of the appellant and has been marketing its products in India. Alleging that the respondent began selling spurious and counterfeit goods, and passing them off as appellant’s product, the latter terminated the distributorship of the respondent with it, and brought an action for passing off.
1.2. The appellant’s suit met with a counter challenge when the respondent laid C.S.891 of 2015 inter alia for declaration that the termination of its dealership by the appellant is wrong and for payment of damages Rs.50.0 lakhs for loss of its reputation. Both suits are being tried jointly and are now mid-way through the trial. Evidence is being recorded in C.S. 405 of 2014, the suit filed by the appellant.
1.3 The trial of the cases began in December, 2016. After the conclusion of the evidence of P.W.1, the appellant has taken out an application in A.No:2556 of 2017 for production of a list of documents under Order VII Rule 14(3) CPC. This was opposed to by the respondent. The learned Single Judge Vide order dated 24-07-2017 has dismissed it, primarily on the ground that the reasons adduced for belated production of the documents are not adequate enough to satisfy the court as required under Order VII Rule 14(3) of the CPC. No appeal was immediately filed against it.
1.4 The trial proceeded and the plaintiff examined a certain Vincent Jose as P.W.3, through whom it elicited certain facts covered by the documents whose production the learned Single Judge has declined to entertain as per the earlier order referred to above. This now prompted the respondent to file an application in A.No:8007 of 2017 for eschewing the evidence of P.W.3 on the ground that (i) the appellant is attempting to bring in facts not pleaded; and (ii) that it attempts to circumvent the effect of the order in A.No:2556 of 2017. Another learned Single Judge of this Court, Vide Order dated 14-03-2018 allowed the said application and in his Order the learned Single Judge inter alia, has relied on the earlier order in A.2556 of 2017.
1.5 Aggrieved by the order in A.No:8007 of 2017 and stung by the reliance which the learned Judge has placed on the order in A.No:2556 of 2017, the appellant has preferred two appeals: (a) As against the order in A.No:8007 of 2017, it has filed OSA 252 of 2018; and (b) as against the order in A.No:2556 of 2017, it has preferred an appeal with a delay of 136 days, for condoning which, it has filed C.M.P. No.12023 of 2018 in OSA.SR.No.33496 of 2018.
2.1 The respondent primarily resisted them on grounds of maintainability. It now requires to be introduced that the Commercial Courts Act, 2015, (would be referred to as CCA) was enacted by the Parliament as per Central Act 4/2016, and was notified on 23-10-2015, and consequently a Commercial Division came to be constituted Vide notification dated 04-12-2017. On 03-01-2018, the learned Single Judge before whom the suits are pending, has passed an order transferring the suits to the Commercial Division of this Court.
2.2 According to the respondent, under Sec.13 of the Act, no appeal is permissible as it in express terms provides that notwithstanding any provision contained in any other law including the Letters Patent, appeal would lie only if the O
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