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HIGH COURT OF DELHI : NEW DELHI

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CS (OS) No.284/2012

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Date of order: 02.03.2012

M/S ASHWANI PAN PRODUCTS PVT. LTD.

..... Plaintiff

Through: None.

Versus

M/S KRISHNA TRADERS

..... Defendant

Through: Ms Prathiba M. Singh, Adv. with

Mr Ashwin Kumar, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

I.A. No.2846/2012 (u/o XXXIX, R.4 CPC, by defendant),

I.A. No.2222/2012 (u/o XXXIX, R.1 & 2 CPC)

1.

The present suit has been filed by the plaintiff for permanent

injunction, infringement of trademark, passing off, rendition of accounts

and damages against the defendant seeking to restrain it from using the

trademark MADHU BAHAR in respect of chewing tobacco.

2.

The suit along with interim application was listed on

06.02.2012. The court passed an interim order thereby restraining the

defendant from manufacturing, selling, offering for sale or otherwise

dealing in “Chewing Tobacco” under the trade mark “MADHU

BAHAR” or any other trade mark which may be deceptively similar to

that of the plaintiff. Today the matter was listed for disposal of the

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pending applications and arguments on behalf of the plaintiff as the

learned counsel for the defendant already made her submissions on

29.02.2012. The following points were raised by the counsel for the

defendant:

(a)The compliance of Order XXXIX, Rule 3 CPC has not been

made by the plaintiff, as provided under the said provision.

(b)The plaintiff has never used the green colour label as filed in

Court along with the suit and it has been filed by the plaintiff

in order to obtain the ex parte order.

(c)The sale figures given by the plaintiff in the pleading do not

tally with the sale figures pertaining to the said trade mark in

the affidavit filed by the plaintiff in Trade Mark Office.

(d)The two trademarks “MADHU” and “MADHU BAHAR”

are different. There is no separate registration in favour of

the plaintiff for word per-se. The plaintiff has merely got the

registration as a label mark. Hence, there is no infringement

under the provisions of Section 17 of the Trade Marks Act,

1999. (e)As the defendant is also holding the license of the said trade

mark through United Traders, therefore, the suit for

infringement of the trade mark is not maintainable.

3.

After the completion of the arguments, the Court enquired

about the compliance of Order XXXIX Rule 3 CPC from Mr Ashok

Mittal, Advocate, who appeared on behalf of the plaintiff. He

submitted that in compliance of Order XXXIX Rule 3 CPC, an

affidavit of the plaintiff’s counsel was filed in the Registry. However,

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he agreed that the weight of the entire paper book filed before Court is

more than 2.5 k.g. and the parcel sent under the compliance of Order

XXXIX Rule 3 CPC is about 1 k.g. He also undertook before Court to

produce relevant record of the green colour label if it has been used by

the plaintiff at any point of time with cogent evidence. He was unable

to give any justification as to why the sale figures produced by the

plaintiff in Court did not tally with the sale figures filed in the Trade

Mark Office.

4.

The counsel for the plaintiff stated that the affidavit of

compliance was filed in the Registry and the copy of the same was

shown to the Court along with postal receipt. However, as per the

report of the Registry, the said affidavit has not been filed.

5.

When the ex-parte order was granted on 06.02.2012, one

week’s time was granted to the plaintiff to comply with the provisions

of Order XXXIX Rule 3 CPC. According to the learned counsel for

the plaintiff, the affidavit was filed within one week. But, the fact

remains that the complete set of paper book was not sent under the said

compliance. The learned counsel for the defendant argued that there is

a total non-compliance of mandatory provision contained un