A.Nos.1705, 1706 of 2022

A.Nos.1705, 1706 of 2022

in C.S.Nos.987 of 2017, 235 of 2020

SENTHILKUMAR RAMAMOORTHY, J.

C.S.No.987 of 2017 was filed by V.V.V. & Sons Edible Oils Limited

against Damodar Foods and R.R.Global Enterprises seeking relief in respect of

alleged trademark infringement by use of the impugned marks IDHAYAM and

IDHAYAM SOUTH INDIAN DELITE. C.S.No.235 of 2020 was also filed by

the same plaintiff but this suit is directed only against Damodar Foods. The

relief prayed for in this suit is identical. In both suits, issues were framed and a

joint trial was scheduled but was not proceeded with.

2. In both the suits, the defendants have filed applications to reject

the plaint. The basis of the applications in the two suits is common. The

applicants / defendants state that the respondent / plaintiff had filed several

suits previously seeking identical relief against the defendants herein. In

paragraph 5(vi) of the affidavit, the applicant set out details of four suits,

including these two suits and two earlier suits, namely, C.S.No.726 of 2017 and

C.S.No.434 of 2017. As regards C.S.No.726 of 2017, it is stated that the plaint

was rejected by a judgment and decree dated 01.02.2019 in A.No.1948 of 2018

on the grounds of re-litigation, suppression of facts and the absence of cause of

action. As regards C.S.No.434 of 2017, it is stated that the suit was dismissed

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A.Nos.1705, 1706 of 2022

in final disposal through judgment and decree dated 23.08.2021 on multiple

grounds, including suppression of facts, the existence of a registered trademark

in the United States of America (the USA) in favour of Meenakshi Overseas

LLC (Meenakshi Overseas) and on the ground that the defendant is not liable in

terms of Section 29(6) read with Section 56 of the Trade Marks Act, 1999 (the

Trade Marks Act).

3. Therefore, the applicants / defendants state that the respective

plaint is liable to be rejected on the ground that the plaintiff had sued

previously on an identical cause of action and therefore the respective suit is

barred under Order 2 Rule 2 CPC. In addition, the applicants / defendants

contend that the suits are barred by res judicata because C.S.No.434 of 2017, in

which the parties are common and issues are substantially similar, was

adjudicated on merits.

4. Oral arguments were advanced on behalf of the applicants /

defendants by Mr.K.Harishankar, learned counsel, and on behalf of the

respondent / plaintiff by Mr.R.L.Ramani, learned senior counsel, and

Mr.V.Anand, learned counsel.

5. Learned counsel for the applicants referred to paragraphs 8 to 10 of

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A.Nos.1705, 1706 of 2022

the plaint in C.S.No.434 of 2017 and pointed out that the cause of action, as

indicated therein is identical to the cause of action in the present suits. By

referring to the judgment of this Court in C.S.No.434 of 2017, he pointed out

that all issues canvassed in these two suits were duly considered and decided in

the said suit. With specific reference to the proceedings in the USA relating to

the registration of the Trademarks IDHAYAM and IDHAYAM SOUTH

INDIAN DELITE, he submitted that these contentions were considered in

paragraphs 35 and 36 of the judgment.

6. He further submitted that the allegation of fraud is misconceived

because the alleged perpetrator of the fraud, Meenakshi Overseas, is not a party

in the suit. He further submitted that particulars of fraud as per Order VI Rule

4 of the Code of Civil Procedure, 1908 (the CPC) were not set out in the plaint.

He concluded his submissions by pointing out that these suits were instituted

by resorting to clever drafting so as to create the illusion that a distinct cause of

action exists as regards these suits.

7. In response, learned senior counsel and learned counsel for the

respondent / plaintiff submitt