ORDER

Both the miscellaneous petitions arises out of the order dated 10.11.2021 passed in Commercial Suit No.16/21 by Commercial Court, Indore, therefore, they are finally heard and being decided by this common order.

01. Under Article 227 of the Constitution of India, M.P. No.5001/2022 has been preferred by the plaintiff & M.P.No.6127/2022 has been preferred by the defendant no.1.

02. The facts necessary for the disposal of these petitions are that the petitioner of M.P.No.5001/2022 filed a Commercial Suit No.16/21 before the Commercial Court, Indore, District – Indore on 04.03.2021 impleading the petitioner of M.P.No.6127/2022 as defendant no.1 and Unisafe Bioscience Pvt. Ltd. as defendant no.2 under Order 7 Rule 1 of the CPC, 1908 r/w Section 55 of the Copyright Act, 1957 seeking the following relief :-

(a) for perpetual injunction restraining the defendatns no.1 & 2, its agents, servants, dealers, representatives and all other persons on their behalf from infringing/offending or violating the plaintiff's Artistic work of ENERZY powder and from printing, publishing, reproducing or otherwise dealing in the said artistic work of ENERZY or any other identical and/or deceptively similar to the plaintiff's Artistic work of ENERZY Powder;

(b) for perpetual injunction restraining the defendants, its agents, servants, dealers, representatives and all other person on their behalf from developing, manufacturing and selling goods under the said impugned artistic work of ENERZY powder or any other Artistic work identical and/or deceptively similar to the plaintiff's aforesaid artistic work of ENERZY Powder amounting to infringement and passing off;

(c) for an order of appointment of a Court Receiver under Order XL Rule 1 of CPC, 1908 as Receiver of defendant's Goods, Brochures, Pamphlets, Samples, Advertising material bearing or containing the plaintiff's said Artistic work of ENERZY Powder;

(d) for an order of delivery of the products or printing or any other material of the defendants under the impugned artistic work of ENERZY Powder unto the Plaintiff for the purpose of destruction erasure including the stationery, blocks and die etc.

(e) for an order against the defendants to render the account of profits earned by them on account of the sales made by them by selling said products under the Artistic work ENERZY Powder and further order for payment of the said profit to the Plaintiff.

(f) For an order of costs of these proceedings.

(g) Any other relief order or direction which this Hon'ble Court deems fit and appropriate in the facts and circumstances of the case and in the interest of justice, may also be granted in favour of the plaintiff and against the defendants No.1 and 2.

03. In paragraph no. 40 of the plaint the plaintiff make the following pleadings to fulfill the requirements of Order 7 Rule 1 (i) of the CPC regarding value of subject matter of the suit for the purpose of jurisdiction and court fees, which is being reproduced as below :-

“(i) Prayers (a) (b), (c), (d) and (e) being incapable of valuation a fixed court fees of Rs.2,000/- is being paid. Plaintiff undertakes to pay any additional Court Fees if this Hon'ble Court so directs.

(ii) In the event of this Hon'ble Court awarding damages in terms of prayer (f), the Plaintiff undertake to pay such additional Court Fees as may be required.”

04. The defendant no.1 in the Commercial Suit and petitioner of M.P.No.6127/2022 filed an application under Order 7 Rule 11 r/w section 151 of the CPC raising the ground that the plaint is liable to be rejected as it attracts the provisions of Order 7 Rule 11 (b) of the CPC, Order 7 Rule 11 (c) of the CPC and Order 7 Rule 11 (d) of the CPC.

05. The plaintiff/petitioner of M.P.No.5001/2022 replied the application and refuting all the grounds raised in the application prayed for dismissal of application submitting that the plaintiff is not s