AJAY POLYMERS vs VIBHOR AGGARWAL TRADING AS FEENULAX HITECH AMRITSAR

$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th December, 2023
+ CS(COMM) 667/2023, I.As. 18593/2023, 18594/2023
AJAY POLYMERS ….. Plaintiff
Through: Mr. Rishi Bansal and Mr. Pankaj Kumar Advocates (M: 9810438450).
Mr. Karan Govel, Advocate (M: 9899383271).
versus

VIBHOR AGGARWAL TRADING AS
FEENULAX HITECH AMRITSAR ….. Defendant
Through: Mr. Mohd. Bilal, Mr. Rahul Kumar and Ms. Akanksha Singh, Advs. (M. 9693960001)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
PRATHIBA M. SINGH, J.
1. This hearing has been done through hybrid mode.
2. The present suit was filed in respect of the trade mark “RAVINDRA” in which the Plaintiff claimed rights since 2013. The said mark is stated to have been used for PVC Pipes, Fittings, Water Storage Tanks, Pressure Pipes, SWR Pipes, Conduit Pipes, Column Pipes, Plumbing Pipes, Casing Pipes, CPVC Pipes etc.
3. The Plaintiff also claimed that it had a registration for the said mark since 2004. The details of the registration are set out below:-

4. The Defendant in the present case is also stated to be engaged in the manufacture and sale of similar goods as that of the Plaintiff. These goods include all types of Rigid PVC, U PVC, C PVC, Plastic SWR, HDPE, LDPE, Column PPR, threaded plumbing and other allied goods.
5. The Defendant is using the mark “UNNATRAVINDRA”. The competing marks are set out below:-

6. The plaint discloses that the Defendant also had registration for the said mark and rectification proceedings were filed by the Plaintiff against the same.
7. When considering the suit on 22nd September, 2023, after having seen that there was some history of proceedings between the parties, notice was issued to the Defendant and reply was directed to be filed.
8. Today, ld. Counsel for the Defendant has appeared and has informed the Court that for the same relief, two suits have earlier been filed by the same Plaintiff before the District Judge Hisar in Haryana. The two suits being –
i. CS/7/2020 titled M/s Ajay Polymers v. M/s Feenulax Hitech Amritsar & Anr which has been withdrawn;
ii. CS/36/2020 titled M/s Ajay Polymers v. M/s Feenulax Hitech Amritsar & Anr. which is still pending;
9. Ld. Counsel for the Defendant submits that the non-filing and non-disclosure of these facts by the Plaintiff goes to the root of the matter as the Plaintiff has sought the same relief again and has now indulged in subterfuge by approaching this Court.
10. On behalf of the Plaintiff, Mr. Rishi Bansal, ld. Counsel submits that the instructions for drafting of the plaint was given to him by Mr. Karan Govel, who is an advocate in Delhi. Mr. Karan, on being queried, submits that he had received instructions from Mr. Munish Jain who is the General Manager of M/s Ajay Polymers, and who is a Company Secretary.
11. The case of the ld. Counsel for the Plaintiff is that the ld. Counsel was never informed of the pendency of these above two suits in Hisar Haryana. Further, ld. Counsel, representing the Plaintiff here, is not the ld. Counsel in any of those earlier two suits.
12. The present chronology of events reveals a situation wherein the Plaintiff has clearly indulged in suppression of material facts. The two suits which were filed in Hisar, Haryana claim almost the same relief i.e., an injunction in respect of use of the mark “RAVINDRA” by the Defendant. One suit has already been dismissed as withdrawn and second suit is pending. The relief prayed for in the present suit are as under:-
“a. For a decree of permanent injunction restraining the Defendants by themselves as also through their individual proprietors, partners, agents, representatives, distributors, assigns, heirs, successors and all others acting for and on their behalf from manufacturing, marketing, selling, using, soliciting, exporting, displaying, advertising, purveying or selling in markets including or through the online marketplaces, social medias or by any other mode or manner dealing in or using the impugned goods under the impugned mark/labelUNNATRAVINDRAand/or any other word/label including color combination, packaging of any kind of product, which may be identical with and/or deceptively similar trademark/label including color combination/ packaging to the Plaintiff s said Trademark/Label RAVINDRA and color combination! packaging and any other formative trademarks/Label of the Plaintiff, in relation to the trade and business of PVC Pipes and Fittings and Water Storage Tanks, Pressure Pipes, SWR Pipes, Conduit Pipes, Column Pipes, Plumbing Pipes, Casing Pipes, CPVC Pipes etc. and other identical/allied/related/cognate goods and from doing any other acts or deeds amounting to or likely to:
i. Infringement of Plaintiff’s registered Trade Mark/LabelRAVINDRA as mentioned above;
ii. Infringement of Plaintiff’s copyright under common law and also the statutory rights as mentioned above;
iii. Passing off and violation of the Plaintiff’s rights in the Plaintiff’s said trademark/label;
iv. Falsification and Dilution of the Plaintiff’s rights in its trademark/label/color combination/packaging.
b. Restraining the Defendant/s from disposing off or dealing with their assets including their shops and premises at the address mentioned in the Memo of Parties and their stocks-in- trade or any other assets as may be brought to the notice of this Hon’ble Court during the course of the proceedings and on the Defendants’ disclosure thereof and which the Defendants are called upon to disclose and/or on their ascertainment by the Plaintiff as the Plaintiff is not aware of the same as per Section 135 (2) (c) of the Trade Marks Act, 1999 as it could adversely affect the Plaintiff s ability to recover the costs and pecuniary relief( s) thereon;
c. For an order for delivery up of all the impugned finished and unfinished materials bearing the Plaintiff’s said Trademarks/labels/ color combination/trade dress/ packaging or any other deceptively similar Trade Mark/ label including color combination/packaging including its blocks, Logo, display boards, sign boards, trade literatures and goods etc. to the Plaintiff for the purposes of destruction and erasure;
d. for a decree of damages to the tune of Rs. 2,00,01,000 (Rupees Two Crores and One Thousand Only) from the Defendant/s to the Plaintiff;
e. Alternatively, for an order for rendition of accounts of profits earned by the Defendant by their impugned illegal business activities and a decree for the amount so found in favour of the Plaintiff on such rendition of accounts;
f. For an order for cost of proceedings in favour of the Plaintiff and against the Defendants, and
g. For such other and further order/s as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”

13. There are various facts pleaded in the plaint which could not have been filed or pleaded without the instructions given by the Plaintiff. The suit is deposed by one of the partners of the firm by Shri. Ashwani Kumar- partner of M/S Ajay Polymers, who is stated to have signed the plaint as also the affidavit in support thereof. The suits in Hisar were also signed by Mr. Ashwani Kumar. Ld. Counsel for the Defendant also challenges the maintainability of the suit on the ground of territorial jurisdiction.
14. There is no doubt that the Plaintiff has indulged in gross concealment of material facts and has attempted to obtain an injunction by indulging in fraudulent conduct. Ld. Counsel for the Plaintiff seeks discharge at this stage. Mr. Karan Govel, has also appeared and submitted that neither of them was informed of the suit filed in Hisar. In CS(COMM) 382/2022 titled Sun Pharmaceutical Industries Ltd V. DWD Pharmaceuticals Ltd, the Court was dealing with a situation involving suppression of facts and observed as under:
“47. At the same time, the plaintiff cannot be allowed to escape the consequences of having concealed material facts from this Court to obtain an ex-parte order of injunction. Whether with the disclosure of the above-mentioned material facts, the Court would have still granted the ad-interim ex-parte order of injunction or not, is not relevant and cannot absolve the plaintiff from the consequences of not making such disclosure of material facts. Such a practice not only has to be deprecated but must also be penalised. The plaintiff, therefore, is saddled with costs of Rs.10 Lakh (Rupees Ten Lakh only) to be deposited with the Delhi High Court Legal Services Committee within a period of two weeks from the date of the judgment.”

15. Further, in the case of Satish Khosla vs M/S Eli Lilly Ranbaxy Ltd. & Ors. 71 (1998) DLT 1, the Division Bench of this Court held that withholding the plaint of an earlier suit from the Court constitutes playing fraud on the Court. The relevant extract is set out below:
“17. As held by the Supreme Court in Advocate-General, State of Bihar Vs. M/s. Madhya Pradesh Khair Industries and another, every abuse of the process of the Court may not necessarily amount to Contempt of Court, Abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a Contempt of Court. It may be that certain minor abuses of the process of the Court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of Order 6, Rule 16 or in some other manner. But it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends it pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice.
18. In our view, by withholding the plaint of the earlier suit from the Court and by not disclosing that in the earlier suit the respondent has not been able to get the injunction, the respondent is guilty of playing fraud on the Court as well as on the opposite party and such acts had been done only in order to gain advantage on the other side and to get a stay in the second suit.”

16. Under the circumstances of the present case, this Court is not inclined to entertain the present suit. However, the Plaintiff cannot be allowed to escape the consequences of such suppression and concealment.
17. Accordingly, the suit is dismissed with costs of Rs.10,00,000/- imposed on the Plaintiff of which a sum of Rs.5,00,000/- shall be paid to the Delhi High Court Staff Welfare Fund and remaining Rs.5,00,000/- shall be paid to the Defendant within four weeks. The details of the Delhi High Court Staff Welfare Fund are as follows:
SB A/c No. 15530110074442
maintained with UCO Bank, Delhi High Court
18. List for reporting compliance on 6th February, 2024. Shri. Ashwani Kumar, one of the partners of the Plaintiff’s firm, who has filed the written statement shall remain present in Court to confirm compliance on the next date of hearing.
19. The Registry shall communicate this order to Shri. Ashwani Kumar, (M: 9215820528) email:-info@ajaypolymers.in, camunishjain@gmail.com and ashwani@ajaypolymers.in. If the costs are not deposited or paid, in terms of this order, the Court would not hesitate in taking stringent action against the Plaintiff including for contempt.
20. This shall be treated as part-heard matter.

PRATHIBA M. SINGH
JUDGE
DECEMBER 07, 2023
mr/bh
(corrected & released on 12th December, 2023)

CS(COMM) 667/2023 Page 2 of 2