ITC LIMITED vs ELORA TOBACCO COMPANY LIMITED & ORS.

$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.07.2024

+ CS(COMM) 201/2024, I.A. 5404/2024, I.A. 5406/2024 & I.A. 32427/2024
ITC LIMITED …..Plaintiff
Through: Mr. Arvind Varma, Sr. Advocate with Mr. Nalin Kohli, Ms. Bansuri Swaraj, Ms. Suhrita Majumdar, Mr. Debjyoti Sarkar, Mr. Amit Mishra, Mr. Afzal B. Khan, Ms. Kiran Bala, Ms. Mitakshara Goyal, Mr. Sharad Besoya, Mr. Akshat Hansaria, Ms. Shreya Nair, Mr. Shivam Singh, Ms. Saloni Agarwal, Ms. Smridi, Mr. Siddesh Kotwal, Ms. Manya Haija, Mr. Pawan Upadhyay, Mr. T. Illayarasu, Mr. Ayuushman Aroraa and Mr. Anshul Shukla, Advs.
M: 9881880037
versus

ELORA TOBACCO COMPANY LIMITED & ORS. …..Defendants
Through: None

CORAM:
HON’BLE MS. JUSTICE MINI PUSHKARNA
MINI PUSHKARNA, J (ORAL)

I.A. 32427/2024 (For Amendment of Plaint)

1. The present application has been filed on behalf of the plaintiff under Order VI Rule 17 read with Section 151 of Code of Civil Procedure (“CPC”), 1908 seeking amendment of the present plaint.
2. Learned Senior Counsel appearing for the plaintiff submits that the present suit has been filed against the defendants for infringement of the plaintiff’s rights in the registered trademark, copyright, passing off, as well as for engaging in unfair trade practices and unfair competition.
3. He submits that defendants are infringing the plaintiff’s well-known trademark ‘Gold Flake’ and ‘roundel devices’ associated with ‘GOLD FLAKE”, i.e., and [hereinafter referred to as ‘GOLD FLAKE Rounder Devices’] by using ‘Gold Impact’ and in respect of identical goods.
4. It is further submitted that during the course of the Local Commission executed at the Indore location, the Local Commissioner in addition to the products under the Mark ‘Gold Impact’, also identified, seized and handed over to the defendants, on superdari the following:
“xxx xxx xxx
a. Rolls of filter paper with Roundel Devices bearing the mark ‘FOREVER GOLD’ – Quantity – 22;
b. Rolls of filter paper with Roundel Devices bearing the mark ‘GOLD FOREVER’ – Quantity – 3;
c. Big cartons containing 10,000 cigarettes in one carton ‘FOREVER GOLD’ – Quantity – 19;

xxx xxx xxx”

5. Learned Senior Counsel for the plaintiff submits that the plaintiff learned about the aforesaid infringing products of the defendant only upon execution of the Local Commission in the present proceedings, carried out pursuant to the order dated 07th March, 2024. Thus, it is submitted that the pleadings in regard thereto, could not have been placed prior to the filing of the present suit.
6. Learned Senior Counsel appearing for the plaintiff further submits that the amendment sought for, is purely based on knowledge and developments that are subsequent to the present suit, and are intricately linked and interconnected with the lis of the present proceedings.
7. It is submitted that the present suit pertains to the violation of the plaintiff’s rights in the trademark ‘Gold Flake’ through the defendant’s infringing product ‘Gold Impact’. Through the amendment, the plaintiff seeks to plead that the defendant’s infringing product, i.e, ‘Gold Forever’ and ‘Forever Gold’, also violate the plaintiff’s right in the well known trademark ‘Gold Flake’. Therefore, the amendments sought for in no manner, alter the nature of the present suit.
8. It is further submitted that the amendments sought for are being introduced as a matter of abundant caution and to address the real questions in controversy.
9. I have heard learned Senior Counsel appearing for the plaintiff and perused the record.
10. At the outset, this Court notes the submission made by learned Senior Counsel appearing for the plaintiff that despite service, none has appeared for the defendants.
11. This Court is of the view that since no appearance has been put before this Court by the defendants, till date, and no written statement has been filed, till date, on their behalf, no prejudice shall be caused to the defendants, if the present application, is allowed.
12. It is also noted that the present suit is at its nascent stage, wherein, defendants are yet to put in appearance and pleadings, are yet to be completed.
13. It is a settled proposition of law that amendment of the plaint can be allowed at any stage of the suit, if the same is necessary for the purposes of determining the real question in controversy between the parties.
14. Further, this Court is also of the view that in case the present amendment is not allowed, the same shall lead to multiplicity of proceedings. Thus, in order to prevent any multiplicity of proceedings and considering the facts stated in the application in question, this Court allows the present application. The amendments, as mentioned in paragraphs 19 to 33, of the present application, are allowed to be made.
15. With the aforesaid directions, the present application is disposed of.
CS(COMM) 201/2024
16. In view of the order passed by this Court in I. A. 32427/2024, the amended plaint is taken on record.
17. Upon filing of the process fee, issue summons to the defendants by all permissible modes. Summons shall state that the written statement be filed by the defendants within thirty days from the date of receipt of summons. Along with the written statement, the defendants shall also file affidavit of admission/denial of the plaintiff’s documents, without which, the written statement shall not be taken on record.
18. Liberty is given to the plaintiff to file replication within thirty days from the date of receipt of the written statement. Further, along with the replication, if any, filed by the plaintiff, an affidavit of admission/denial of documents of the defendant, be filed by the plaintiff, without which, the replication shall not be taken on record. If any of the parties wish to seek inspection of the documents, the same shall be sought and given within the timelines.
19. The interim order dated 7th March 2024, in favour of the plaintiff, is extended, till the next date of hearing.
20. Compliance of Order XXXIX Rule 3 CPC, be made, within a period of one week.
21. List before the Joint Registrar (Judicial) for marking of exhibits on 22nd August, 2024.
22. List before Court on 04th October, 2024.

MINI PUSHKARNA, J
JULY 5, 2024/kr

CS(COMM) 201/2024 Page 1 of 5