$~ * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
22. d November, 2017 Pronounced on:
04. h December, 2017 CS(COMM) 400/2017 LOTUS GREEN LLP ..... Plaintiff Through : Mr.T.K.Ganju, Sr. Adv. with and Mukhi Mr.Ashish Ms.Madhurima Kapoor, Advs. versus RENOWNED BUILDTECH PRIVATE LIMITED ..... Defendant Through : Mr.Sachin Datta, Sr. Adv. with Ms.Puja Dewan Seth and Uday Seth, Advs. CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.
IA No.6829/2017 & 8114/2017 1. This application (IA No.8114/2017) under Order 39 Rule 4 CPC is moved by the defendant for vacation of an interim order dated 30.05.2017 passed under Order 39 Rule 1 & 2 of the CPC (IA No.6829/2017) wherein the defendant was restrained from advertising, offering of service/sale, adopting, using and/or dealing in any manner with the plaintiff‟s registered trademarks/name “Lotus” and logo of the plaintiff or any other trade mark identical or deceptively similar to the CS(COMM) No.400/2017 1 of 21 plaintiff‟s above mentioned trademarks and further from representing in any manner that they are connected with the plaintiff or by using the trademark of Lotus Greens in its website till the next date of hearing.
2. During the course of the arguments by either counsels the controversy was culled down to three issues (a) if the defendant had infringed the mark “Lotus” of the plaintiff; (b) the effect of other users in the market using the mark “Lotus” and (c) whether this court has jurisdiction to try and decide the dispute.
3. Qua contention (a) above, the defendant in its application IA No.8114/2017 has alleged, a bare perusal of the plaint would reveal that though the plaintiff claim to have a registered trademark “Lotus” in its name, but para 6 of the plaint clarifies the following trademarks been registered in favour of the plaintiff viz. “Lotus Arena” in class 36; “Lotus Arena” in class 37; “Lotus Greens Sports City” in class 36; “Lotus Greens Sports City” in class 37; “Lotus Isle” in class 36; “Lotus Isle” in class 37; “Lotus Arascape” in class 37. The learned Senior Counsel for the defendant argues that all the above trademarks show the word “Lotus” has been used only as a prefix word alongwith an another word but never the word “Lotus” individually has been registered in favour of the plaintiff anywhere in India and hence the plaintiff cannot claim exclusive rights to the use of word “Lotus” as its mark/label. Qua an alleged use of a website by the defendant viz. www.lotusgreens.net.in, it CS(COMM) No.400/2017 2 of 21 is argued that it is a normal practice where the plaintiffs themselves through their agents create a website in the name of defendant just to make a cause of action for these types of suits and the defendant herein is nowhere related to such website and rather invites the court to take any penal action against the maker of such website. In support of his contentions, the learned Senior Counsel for the defendant has heavily relied upon Vardhman Buildtech Pvt. Ltd. and others vs. Vardhman Properties Pvt. Ltd. 2017 (1) R.A.J.
558 (Delhi) wherein the division bench of this court has held as under. “8. On a plain reading of section 15(1), it is evident that where a proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he is permitted to apply to register the whole and the part as separate trade marks. In the present case, the respondent is the proprietor of the label/mark which includes the words VARDHMAN PLAZAS. The respondent is claiming exclusivity in respect of the word VARDHMAN. It is clear that he had the option to make an application for registering the word VARDHMAN as a separate trade mark. Assuming that he could have had the word mark registered, it is an admitted fact that the respondent made no such application. Section 17 of the said Act makes it clear when a trade mark consists of several matters, as FAO(OS) 187/2016 & 188/2016 Page 11 of 14 it does in the present case, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole. There is no dispute that the label/mark, taken as a whole, is the exclusive property of the respondent. The learned counsel for the appellants has no quarrel with this at all. The issue arises when the CS(COMM) No.400/2017 3 of 21 4. respondent claims exclusive right to a part of the label/mark and particularly to the word VARDHMAN. Section 17(2) is a non-obstante provision [vis--vis sub- section(1)]., which stipulates that when a trade mark contains any part which is not the subject matter of a separate application by the proprietor for registration as a trade mark or which is not separately registered by the proprietor as a trade mark or contains any matter which is common to the trade or is otherwise of a non- distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. In the present case, neither has the respondent separately registered VARDHMAN as a trade mark nor has any such application been made. Furthermore, the word VARDHMAN is itself of a non-distinctive character and is not only common to this trade but to several other businesses. Consequently, the label/mark which contains the words VARDHMAN PLAZAS does not confer any exclusive right on the respondent insofar as a part of that mark, namely, VARDHMAN is concerned.” the registration of On the other hand, the plaintiff has urged that it is a family owned partnership firm of Mr.Nirmal Singh and his family. Currently, the entire capital of the Plaintiff is contributed by Mr. Harkaran Singh Uppal, son of Mr.Nirmal Singh. "Lotus" is used as a brand name by the Plaintiff and is a registered trademark for its real estate business. The word “Lotus” as a trade/property mark is associated with the family of the promoters of the Plaintiff dating back to the year 2004, when Mr. Nirmal Singh, the father of Mr. Harkaran Singh Uppal. established a senior Secondary CS(COMM) No.400/2017 4 of 21 school by the name "Lotus Valley International School" in NOIDA, Gautam Budh Nagar and it has more than 4000 students. Subsequently in year 2010, another school under the same name was opened in Gurgaon having more than 2000 students.
5. In the year 2007, Mr. Nirmal Singh along with Mr. Vidur Bharadwaj and Mr. Surpreet Singh Suri incorporated an entity under the name and style of M/s Three C Universal Developers (P) Ltd. under the brand "3 C Company" (3C) for carrying on business in the real estate sector. It was decided the 3C will also use "Lotus" as the trade name for its various projects.
6. Subsequently 3C launched and completed various commercial and residential projects using "Lotus" as a prefix viz:
"Lotus Boulevard", "Lotus Boulevard Espacia", "Lotus Panache", "Lotus Zing", "Lotus 300" and "Lotus City". Notwithstanding the said usage of "Lotus" by 3C, it was agreed and understood between the three above named promoters that the other two promoters shall not have any objection of the same being used by Mr. Nirmal Singh, the first user, in future. It was also agreed and understood that even though "3C" could obtain registration of the trade names of its various projects, it will never claim exclusivity in so far as usage thereby Mr. Nirmal Singh and his family.
7. The list of group of companies where the Plaintiff is a holding company are as follows: Lotus Greens Constructions Private Limited, Bright Buildtech Private Limited and Three C Properties Private Limited. The Plaintiff is alleged to have launched various projects with the word "Lotus" as follows: Lotus Greens Sports City, Lotus Isle, Lotus Arena, CS(COMM) No.400/2017 5 of 21 Lotus Arena- 2, Lotus Arena- 7 etc. In order to secure statutory rights in respect of trademarks of the various projects, the Plaintiff has got registered the same and has been granted registration certificates in respect thereof by the Office of the Registrar of Trade Marks.
8. The cost of all the above projects of the plaintiff, allegedly, is more than Rs.20,000 crore and most of these projects have since been completed. When compared to the plaintiff‟s worth the defendant has projects worth Rs.375 crore as alleged in their written statement. The investments made by the plaintiff in advertisement, publicity and in business/sales promotion has increased from Rs.1,75,82,994 in the year 2013-14 to Rs.3,24,56,974 in the year 2015-16 and when compared to the investments made for the sales promotion by the defendant it is only Rs.1,18,000 for its Lotus Valley project; Rs.9,00,000 for its Lotus Parkscape project; and Rs.17,99,899 for its Lotus Shrishti project in the year 2016-17. Thus is no comparison qua the worth of the projects undertaken by the plaintiff and those by the defendant in terms of the investments made in overall development of such projects and hence all these facts reveal the defendant has been using the reputation of the plaintiff and in fact is infringing the registered trade mark of the plaintiff and is passing of its own spaces/flats by using the prefix Lotus in its projects. The law as it stands today, it is not at all necessary to get the single word “Lotus” registered as a trademark for maintaining action for infringment/passing of.
9. In Kirorimal Kashiram Marketing & Agenices Private Limited vs. Sita Chawal Udyog Mill 2010 SCC Online (Delhi) 2933 it was observed. CS(COMM) No.400/2017 6 of 21 trademark, “06. That copying of a prominent part of a trademark of a person is prohibited, more so, when the same is a registered following observations of a judgment of a Division Bench of this court in the case reported as Goenka Institute of Education and Research v. Anjani Kumar Goenka AIR2009Del.
139. is clear from the “17. The question which follows now is that whether „Goenka‟ being only a part of the trade mark/trade name „G.D. Goenka Public School‟ whether even such part of larger trademark is entitled to protection. Putting it differently, if there is prior use of a larger trade mark will there be a prior use also for a part of the trade mark?.
18. The law in this regard is stated in para 34 to 39 of the impugned judgment. Some of the paras are reproduced below:-
"34. A trade mark is infringed if a person other than the registered proprietor or authorized user uses, in relation to goods covered by the registration, one or more of the trade mark's essential particulars. The identification of an essential feature depends partly upon the Court's own judgment and partly upon the burden of the evidence that is placed before the Court.
35. In James Chadwick & Bros. Lid. V. The National Sewin Thread Co. Ltd., MANU/MH/0063/1951 the Court ruled as under: in an action for infringement what is important is to find out what was the distinguishing or essential feature of the trade mark already registered and what is the main feature or the main idea underlying the trade mark. In Parle Products (f) Ltd. v. J.P. & Co. Mysore. :MANU/SC/0412/1972 the Supreme Court took the same view.
36. In the judgment of the Supreme Court in Ruston and Hornby Engineering Co.,MANU/SC/0304/1969. the High Court, in appeal, Zamindara Ltd. v. CS(COMM) No.400/2017 7 of 21 trade mark infringed that the offending held the appellant's trade mark “Ruston” and restrained the respondent from using the trade mark “Rustam” but further held that the use of the words “Rustam India” was not an infringement of the registered trade mark, as the appellant's goods were manufactured in England and not in India and the suffix of the word “India” constituted a sufficient distinguishing factor. The Supreme Court, white upholding the first part of the High Court Judgment and reversing the second part, held that an infringement of a registered trade mark takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive. xxxx 11. In view of the said discussion, since the learned Judge has clearly misapplied the law and arrived at a conclusion which is quite unsustainable in law, this court is of the opinion that the impugned order is liable to be set aside. Ordinarily, if two views were possible, this court would not have interfered, however, we are of the firm opinion that only one view is possible in the facts of the present case because not only the appellant/plaintiff was the prior and the registered user of the trademark, the adoption of the respondent/defendant was not honest and it is not permissible to copy a prominent part of the registered trademark of another person, more so, when the said word mark is arbitrarily adopted with respect to the product in question. The balance of convenience is clearly not in favour of the defendant/respondent but is in favour of the appellant/plaintiff who will be caused serious, grave and irreparable injury with respect to its ownership and goodwill in the trademark “Double Deer” The Supreme Court in the case of Ram Dev Food Products (P) Ltd. (supra) has held that an Appellate Court is entitled in certain circumstances to interfere CS(COMM) No.400/2017 8 of 21 the grant or refusal of with the order of a learned Single Judge in such matters where the discretion has been exercised by the learned Single Judge arbitrarily, capriciously, perversely or where the court has ignored the settled principles of law regulating interlocutory injunctions. We find the present case to be fit case in accordance with the above for interference and the impugned order of the learned Single Judge dated 21.5.2008 is set aside and the I.A. 1315/2006 as filed by the appellant/plaintiff before the learned Single Judge is entitled to be allowed and thus the respondent/defendant is restrained from in any manner using the trademark “Golden Deer” or any other mark deceptive similar to the appellant/plaintiff's registered trademark “Double Deer” with respect to the product namely rice and such other products as fall in the class of goods for which the trademark of the appellant/plaintiff is registered and for which the appellant/plaintiff is using the said trademark” 10. In Kaviraj Pandit Durga Dutt Sharma vs. Navratna Pharmaceutical Laboratories AIR1965Supreme Court 980 the Court held as under: “30. The mark of the respondent which he claims has been infringed by the appellant is the mark 'Navaratna Pharmaceutical Laboratories', and the mark of the appellant which the respondent claimed was a colourable imitation of that mark is 'Navaratna Pharmacy'. Mr. Agarwala here again stressed the 'Navaratna' which constituted an essential part of feature of the Registered Trade Mark was a descriptive word in common use and that if the use of this word in the appellant's mark were disregarded, there would not be enough material left for holding that the appellant had used a trade mark which was deceptively similar to that of the respondent. But this proceeds, in our opinion, on ignoring that the appellant is not, as we have explained that the fact CS(COMM) No.400/2017 9 of 21 registered mark earlier, entitled to insist on a disclaimer in regard to that word by the respondent. In these circumstances, the trade mark to be compared with that used by the appellant is the entire the word 'Navaratna'. Even otherwise, as stated in a slightly different context : (Kerly on Trade Marks 8th Edn.
407) "Where common marks are included in the trade marks to be compared or in one or in one of them, the proper course is to look at the marks as wholes and not to disregard the parts which are common".” including 11. In Ireo Pvt. Ltd. vs. Genesis Infratech Pvt. Ltd. 208 (2014) DLT612 the Court held as under: “1. The suit is filed seeking a decree of permanent injunction to restrain the defendant from offering for sale or dealing in real estate business under the impugned trade mark 'Genesis Skyon' or any other trade mark which may be deceptively similar to the plaintiff's trade mark 'TREO SKYON'. Other connected reliefs are also sought. The present application is filed for seeking an interim injunction to restrain the defendant from offering for sale, advertising or dealing in real estate business under the said impugned trade mark or using any trade mark which is deceptively similar to the plaintiffs trade mark till pendency of the Suit.
6. The defendant has filed the written statement/reply. In the written statement/reply the registration of the plaintiff is for the trade mark "Ireo Skyon, Space Age Living" and hence the plaintiff cannot claim exclusive registration of the trade mark Ireo Skyon. It is urged that the use of the word Sky is common and prevalent in real estate industry. It is urged that sky being common is used by the defendant in accordance with honest practices in the real estate industry. It is urged that the words Sky And skyon are publici juris and is urged it that CS(COMM) No.400/2017 10 of 21 the said words does not amount the use of to infringement of the registered trade mark of the plaintiff. It is further stated that the official website of the Government of India would show that several trade marks with the word/label with prefix SKY are registered under Class 37 of the Trade mark Rules, 2002 or are pending registration. Reliance is also placed on Section 17 of the Trade marks Act to claim that the plaintiff cannot claim proprietary rights over part of trade mark Sky or Skyon.
22. Learned Senior Counsel for the defendant had firstly urged that 'Sky' is a common descriptive word and everyone in the trade of real estate is using the word sky. Reliance is also placed by the defendant on a list of trade marks which it obtained from the website of Government of India which contain the word/label 'Sky' as a prefix to trade marks which are registered under class 37 of the Trade Marks rules. Hence, it is urged that the plaintiff cannot claim any protection for the word Skyon. In my opinion the said contention has no merit. The word in question used by the plaintiff as part of its trade mark is 'Skyon' and not 'sky'. The defendant is not using the word sky in its trade mark but have used the exact words as used by the plaintiff in its mark Skyon' as part of its mark. Skyon is not a descriptive word and cannot be confused with the word Sky.
39. Accordingly, the defendants are restrained by injunction order from using the trade mark 'Genesis Skyon' or any other mark deceptively similar to that of the registered trade mark of the plaintiff 'Ireo Skyon Space Age Living' till the pendency of the present suit. The application is disposed of.” 12. A bare perusal of the judgments cited above by both the counsels would reveal the Vardhman Buildtech Pvt. Ltd. (supra) is clearly distinguishable as the cited case relates to the corporate name of the CS(COMM) No.400/2017 11 of 21 appellant wherein it used the word „Vardhman‟ along with logo which mark was being used by the defendant as it registered trademark (label mark of the defendant) but whereas in the present case, LOTUS being used as a prefix in all the registered marks or labels by the plaintiff herein for its product viz. spaces/flats and the defendant is also using the same prefix for same projects. Since both the parties are functioning, having built up projects in the same area; both being in same trade would certainly create a confusion in the mind of a genuine customer as there shall be every chance of passing off the defendant‟s product viz. flats etc. as that of the plaintiff.
13. Secondly though the learned counsel for the defendant argued about the effect of Section 17(2) of the Trademark Act being duly considered in Vardhaman (supra) and whereas in the judgments cited by the learned counsel for the plaintiff it was ignored but a bare reading of the non-obstante clause section 17(2) would show it relates only to sub section (1) of Section 17 but whereas Section 29 of the Trade Mark Act covers a broader arena as it confers right on the registered proprietor under Section 29(2) of the Act to protect infringement of his mark in the course of the trade where there is identity and similarity of the goods and services covered by such registered trademark and is likely to cause confusion to the public. The effect of section 17 of Trade Marks Act was in fact considered in IREO‟s case (supra), which case was never cited in Vardhman Buildtech Pvt. Ltd. (supra).
14. Thus, where the plaintiff is a prior and a registered user of the trademarks using Lotus as a prefix and where the defendant copies the CS(COMM) No.400/2017 12 of 21 prominent part of the registered trademarks of the plaintiff especially when both are in similar trade, operating in same vicinity, the mark being nearly resembling, its user by the defendant would certainly cause loss to the business of the plaintiff and the adoption of similar mark by the defendant would certainly be not an honest adoption of such mark. The judgment of Vardhman Buildtech Pvt. Ltd. (supra) at best can be treated as a law in peculiar facts of the said case but where the prominent part of the registered mark of plaintiff is copied, the defendant needs to be injuncted, per law cited above.
15. Contention (b) relates to the effect of the other users in the market using a similar trademark/label as is used by the parties. Such names of other persons are given in Annexure P-22 to the application IA No.8114/2017. It is for the plaintiff to take action against such person using similar mark but that would never give a right to the defendant to use such mark, especially when the defendant operating in same vicinity.
16. In Ireo‟s case (supra) where several trade marks with prefix sky were registered under class 37 of the Trade Mark Rules 2002 or were pending registration then also the defendant was precluded from using the work „skyon‟.
17. Coming to the contention (c) viz., this court has no jurisdiction since both the plaintiff and defendants are doing their business at Noida, the learned counsel for the defendant has relied upon Ultra Home Construction Pvt. Ltd. vs. Purushottam Kumar Chaubey & Ors 2016(4)R.A.J.
352 (Delhi), which notes as under: “13. It is evident from the above observations that the interpretation given to the expression "carries CS(COMM) No.400/2017 13 of 21 on business" in the context of a defendant under section 20 of the Code has also been employed in the context of a plaintiff under the said sections 134(2) and 62(2). Thus, in addition to the places where suits could be filed under section 20 of the Code, the plaintiff can also institute a suit under the Trade Marks Act, 1999 and the Copyright Act, 1957, as the case may be, by taking advantage of the provisions of section 134(2) or section 62(2), respectively. Both the latter provisions are in pari materia. Under these provisions four situations can be contemplated in the context of the plaintiff being a corporation (which includes a company). First of all, is the case where the plaintiff has a sole office. In such a case, even if the cause of action has arisen at a different place, the plaintiff can institute a suit at the place of the sole office. Next is the case where the plaintiff has a principal office at one place and a subordinate or branch office at another place and the cause of action has arisen at the place of the principal office. In such a case, the plaintiff may sue at the place of the principal office but cannot sue at the place of the subordinate office. The third case is where the plaintiff has a principal office at one place and the cause of action has arisen at the place where its subordinate office is located. In this eventuality, the plaintiff would be deemed to carry on business at the place of his subordinate office and not at the place of the principal office. Thus, the plaintiff could sue at the place of the subordinate office and cannot sue (under the scheme of the provisions of section 134(2) and 62(2)) at the place of the principal office. The fourth case is where the cause of action neither arises at the place of the principal office nor at the place of the subordinate office but at some other place. In this case, the plaintiff would be deemed to carry on business at CS(COMM) No.400/2017 14 of 21 the place of its principal office and not at the place of the subordinate office. And, consequently, it could institute a suit at the place of its principal office but not at the place of its subordinate office.” 18. There is no doubt to the law laid down above but the plaint do state the plaintiff has its registered/principle office in Delhi; the defendant is advertising its product in website www.lotusgreens.net.in in Delhi and in other parts of India, which allegation, though denied, cannot be ignored at this stage. The website can be accessed and operated from all over the country, including Delhi and, hence, prima facie, this Court does have the jurisdiction, as was held in World Wrestling Entertainment, Inc. v. M/s Reshma Collection & Others, 2014 SCC Online Delhi 2031. The factum of false creation of such website, can only be decided after the evidence to the contrary has been brought on record.
19. Hence, I am of the considered opinion that the prima facie case; the balance of convenience lies in favour of the plaintiff and if injunction is not granted, an irreparable loss, in the peculiar facts, shall be caused to the plaintiff and hence, the interim order dated 30.5.2017 is made absolute. The application under Order 39 Rule 4 CPC thus stands dismissed and application under Order 39 Rule 1 & 2 CPC is allowed. However, as alleged by the defendant, since now only for 28 flats in its two projects viz. Lotus Villa and Lotus Park Space the sale deeds need to be executed and if not allowed would rather put the genuine customers in severe hardship and delays as would trigger obtaining of various necessary approvals for change of the name of its projects viz. Lotus CS(COMM) No.400/2017 15 of 21 Villa and Lotus Park Space, hence to save the buyers of such harassment/inconvenience/delays etc. the defendant is permitted to execute the sale deeds in favour of buyers of remaining 28 flats (out of 800 flats) in these two projects viz. Lotus Villa and Lotus Park Space, provided the defendant shall not advertise for such flats, in print media, online or otherwise and on his understanding that it has changed the name of its third project viz., Lotus Shristi to some other name. Thus process of execution of the sale deeds qua 28 of such remaining flats be completed within four months from today. The application stands disposed of. IA No.11744/2017 ( u/o 6 Rule 17 CPC) 20. The plaintiff had filed this application for adding para 33A after para 33 to the original plaint dated 26.05.2017. It is one of the contention that since an application under Order 39 Rule 4 CPC as well as under Order 7 Rule 10 CPC is pending, an application under Order 6 Rule 17 cannot be entertained to allow an amendment in the original plaint as the defendant intends to add a new cause of action. However, the application under order 39 Rule 4 CPC has since been disposed of.
21. Let us examine as to what the plaintiff intend to add to its original plaint. Para 33 of the original plaint is stated as under: jurisdiction “33. That it is stated that this Hon'ble Court has the pecuniary to entertain and adjudicate the present suit by virtue of section 2(l)(c)(xvii) and section 2(1 )(i) of the Commercial Courts, Commercial Division and Commercial Appellant Division of High Courts Ordinance, CS(COMM) No.400/2017 16 of 21 2015. This Hon'ble Court also has the territorial jurisdiction to entertain and adjudicate the present suit under Section 134 of the Trade Marks Act, 1999 as the Plaintiff registered office is in Delhi which is within the territorial limits of this Hon'ble Court.” 22. Now the plaintiff intends to add para 33A after para 33 and it runs as under: “33A.That further a substantial part of cause of action has arisen in Delhi within the jurisdiction of this Hon'ble Court. The Plaintiff applied for registration of various trade marks at Delhi through its consultants. The trade marks duly registered were received at Delhi. The Plaintiff also maintains its website www.lotusgreens.in at Delhi. The infringement of trademarks took place not only in Noida and Ghaziabad also at Delhi, as Plaintiff's employee came across bill boards, advertising about a residential project under the name and style of "Lotus Shrishti Premium Villas " in NH-24 near Mayur Vihar, which is in Delhi. That the cause of action for the present Suit has further arisen as the Plaintiff has a wide reach of customers in Delhi and across NCR. The the Delhi and NCR have customers across accessed infringing i.e. www.lotusgreens.net.in including from Delhi. The Plaintiff regularly advertises its projects in Delhi and NCR, including in newspapers in Delhi and the infringing mark of the Defendant has led to confusion to the customers of the Plaintiff who are across Delhi NCR, including in Delhi. A part of the cause of action has also arisen in Delhi, where the registered office of the Plaintiff is situated. The Plaintiff is also carrying on business at Delhi at its registered office, where policy decisions are taken, website the CS(COMM) No.400/2017 17 of 21 books of accounts and all statutory reports are maintained. The tax returns of the Plaintiff are filed from Delhi and the Plaintiff, which is a limited liability partnership constituted in Delhi, receives all services at its Delhi office address.” 23. What the plaintiff intends is to explain as to how this Court has jurisdiction to deal with this matter. Already in the original plaint the plaintiff has alleged the defendant maintains its website www.lotusgreens.in at Delhi which is used for infringement of its trademark. The customers across Delhi and NCR access the website including from Delhi. Now by adding para 33A the plaintiff had only explained as to how he has filed this suit before this Court and how this Court has territorial jurisdiction to entertain this suit. Averments made in para 33A merely elicite and explain averments pertaining to the cause of action of the plaint. The amendment sought does not in any way alter the cause of action or set out a fresh case for the plaintiff. No new facts have been introduced by the plaintiff in the averments made in the additional para 33A.
24. In Ganesh Trading Co. vs Moji Ram, (1978) 2 SCC91the court held: “5.It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which CS(COMM) No.400/2017 18 of 21 may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action of action will be defective. In that case, an attempt to supply the omission has been and could sometime b viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really becomes a good cause of action. This, however, is not the only possible interpretation; to be put on every defective state of pleadings. Defective pleadings are generally curable, if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.
11. The High Court had also referred to Jai Jai Ram Manohar Lal V. National Building Material Supply, Gurgaon [1970]. 1 SCR22but failed to follow the principle which was clearly laid down in that case by this Court This Court while reversing this hypertechnical view observed (at p. 1269): Rules of procedure are intended to be handmaid to the administration ofjustice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the CS(COMM) No.400/2017 19 of 21 rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” In DLF Limited vs Rediff.com India Ltd, CS(COMM) 399/2017 25. this court has observed: “that even though the place of business of the Defendants are at different city, this Hon'ble Court would have prima facie, territorial jurisdiction as the website with the similar name as that of the plaintiff was operating which "is certainly capable of customers of the plaintiff being diverted to the defendant no.2 to 5.” 26. The judgment relied on by the Defendant of Archie Comic Publications Inc vs Purple Creations Pvt. Ltd. 172 (2010) DLT234 rather supports the case of the Plaintiff as it observes in paragraph 23- “in our view, if the plaint discloses some facts, which may however, be incomplete to vest territorial jurisdiction in the Court, the Court would entertain an Application for amendment of pleadings."
The reason for which amendment was not allowed in Archie (supra) is absent in the present case as the plaint herein sufficiently disclose cause of action and the amendment sought is only to elaborate the same.
27. Since the amendment sought does not change the color of the suit and does not introduce any new cause of action but only elicite the CS(COMM) No.400/2017 20 of 21 averments made therein, the defect if any in the pleadings can be allowed to be cured. The amendment being necessary to determine the real question of controversy, hence is allowed.
28. The application is disposed of. The amended plaint filed along with the application is taken on record.
29. No order as to costs. CS(COMM) 400/2017 30. Let the written statement to the amended plaint, if any, be filed by the defendant within four weeks from today with an advance copy thereof to the learned counsel for the plaintiff. Replication thereto, if any, be also filed within four weeks thereafter.
31. List for completion of the pleadings before the Learned Joint Registrar (Judicial) on 22.02.2018. DECEMBER04 2017 DU/M/RS YOGESH KHANNA, J CS(COMM) No.400/2017 21 of 21