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CNH Industrial (India) Pvt. Ltd. v/s Tirth Agro Technology Pvt. Ltd.


Company & Directors' Information:- CNH INDUSTRIAL (INDIA) PRIVATE LIMITED [Active] CIN = U29220MH1992PTC069675

Company & Directors' Information:- K. N. C. AGRO LIMITED [Active] CIN = U01500WB2005PLC102657

Company & Directors' Information:- F AND K AGRO PRIVATE LIMITED [Active] CIN = U01111PN1980PTC014563

Company & Directors' Information:- R T AGRO PRIVATE LIMITED [Active] CIN = U15400MH1988PTC122934

Company & Directors' Information:- N M AGRO PRIVATE LIMITED [Active] CIN = U15209DL2000PTC103461

Company & Directors' Information:- K F AGRO PRIVATE LIMITED [Active] CIN = U01132PB1998PTC021937

Company & Directors' Information:- T K M AGRO LIMITED [Active] CIN = U01119TZ2000PLC009159

Company & Directors' Information:- M S AGRO PRIVATE LIMITED [Active] CIN = U01403WB2011PTC163653

Company & Directors' Information:- S K K AGRO PRIVATE LIMITED [Active] CIN = U01110DL2007PTC163157

Company & Directors' Information:- P N AGRO PVT LTD [Active] CIN = U01401WB1992PTC056261

Company & Directors' Information:- TIRTH AGRO TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900GJ2000PTC038435

Company & Directors' Information:- B R V AGRO PRIVATE LIMITED [Strike Off] CIN = U15139UP2007PTC034299

Company & Directors' Information:- A A AND A AGRO LIMITED [Converted to LLP] CIN = U01111DL1986PLC025101

Company & Directors' Information:- B. P AGRO INDIA PRIVATE LIMITED [Active] CIN = U15132DL2019PTC357421

Company & Directors' Information:- M Y AGRO PRIVATE LIMITED [Active] CIN = U51221DL2011PTC215043

Company & Directors' Information:- INDUSTRIAL TECHNOLOGY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC048042

Company & Directors' Information:- H R D AGRO PRIVATE LIMITED [Active] CIN = U15490PB2006PTC030412

Company & Directors' Information:- C F L AGRO PRIVATE LIMITED [Strike Off] CIN = U01409KA2001PTC028797

Company & Directors' Information:- L K AGRO PRIVATE LIMITED [Active] CIN = U15140MH1998PTC115185

Company & Directors' Information:- H D AGRO PRIVATE LIMITED [Strike Off] CIN = U01111MH1996PTC097451

Company & Directors' Information:- P C L AGRO PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049537

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- A S AGRO PRIVATE LIMITED [Active] CIN = U74899DL1989PTC040467

Company & Directors' Information:- S N N AGRO PRIVATE LIMITED [Active] CIN = U01114JH2016PTC008919

Company & Directors' Information:- R R S AGRO PRIVATE LIMITED [Strike Off] CIN = U15139DL2010PTC209756

Company & Directors' Information:- AGRO PRIVATE LIMITED [Strike Off] CIN = U51101KA1962PTC001475

Company & Directors' Information:- D. J. AGRO PRIVATE LIMITED [Strike Off] CIN = U01112DL1994PTC057414

Company & Directors' Information:- G A AGRO PRIVATE LIMITED [Active] CIN = U01229KL2002PTC015736

Company & Directors' Information:- M K B AGRO PRIVATE LIMITED [Active] CIN = U01100MH1996PTC101802

Company & Directors' Information:- T D K AGRO PRIVATE LIMITED [Active] CIN = U29190BR1991PTC004486

Company & Directors' Information:- S G AGRO PRIVATE LIMITED [Active] CIN = U01122KA1995PTC017091

Company & Directors' Information:- AGRO INDIA PRIVATE LIMITED [Active] CIN = U01407AR2013PTC008381

Company & Directors' Information:- U & V AGRO PRIVATE LIMITED [Active] CIN = U01403TZ2015PTC021823

Company & Directors' Information:- B A B AGRO LTD [Strike Off] CIN = U24231MH1993PLC073114

Company & Directors' Information:- B A B AGRO LTD [Active] CIN = U24233WB1987PLC043179

Company & Directors' Information:- B C M AGRO PRIVATE LIMITED [Active] CIN = U01119WB1999PTC090308

Company & Directors' Information:- K. K. AGRO PVT. LTD. [Strike Off] CIN = U51420WB1987PTC042090

Company & Directors' Information:- H & W AGRO PRIVATE LIMITED [Strike Off] CIN = U01400MH2012PTC238144

Company & Directors' Information:- K D AGRO PRIVATE LIMITED [Converted to LLP] CIN = U15312DL2005PTC131996

Company & Directors' Information:- H R AGRO PRIVATE LIMITED [Active] CIN = U01119PB1995PTC016403

Company & Directors' Information:- C K N AGRO PRIVATE LIMITED [Active] CIN = U01300KL2020PTC064742

Company & Directors' Information:- A Q AGRO PVT LTD [Under Process of Striking Off] CIN = U51209WB2006PTC109930

Company & Directors' Information:- S E AGRO PRIVATE LIMITED [Active] CIN = U52500AP2016PTC103446

Company & Directors' Information:- S U B AGRO PRIVATE LIMITED [Active] CIN = U24129PN2000PTC015404

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- A S G AGRO LIMITED [Strike Off] CIN = U01119HR2004PLC035459

Company & Directors' Information:- T & T AGRO PRIVATE LIMITED [Active] CIN = U01132WB1999PTC090368

Company & Directors' Information:- C L AGRO PRIVATE LIMITED [Strike Off] CIN = U74120UP2012PTC051898

Company & Directors' Information:- P M S AGRO PVT LTD [Strike Off] CIN = U29211PB1994PTC014448

Company & Directors' Information:- B R K AGRO PRIVATE LTD [Strike Off] CIN = U29211PB1994PTC014302

Company & Directors' Information:- R E I AGRO LTD. [Active] CIN = U01111WB1994PLC065082

Company & Directors' Information:- P & S AGRO INDIA LIMITED [Strike Off] CIN = U01403MH2011PLC214782

Company & Directors' Information:- D N D AGRO (INDIA) LIMITED [Active] CIN = U01403PN2011PLC139235

Company & Directors' Information:- L C A AGRO PRIVATE LIMITED [Strike Off] CIN = U01112UP2005PTC029657

Company & Directors' Information:- V M G AGRO INDIA LIMITED [Active] CIN = U01100MP2011PLC026434

Company & Directors' Information:- G D AGRO PRIVATE LIMITED [Strike Off] CIN = U24122UP1993PTC015164

Company & Directors' Information:- P B AGRO PRIVATE LIMITED [Amalgamated] CIN = U26960MH1990PTC057137

Company & Directors' Information:- R A P AGRO INDIA PVT LTD [Strike Off] CIN = U14200WB2006PTC107514

Company & Directors' Information:- G T AGRO INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL2005PTC142577

Company & Directors' Information:- F AND K AGRO PVT LTD [Strike Off] CIN = U29248PN1980PTC022759

Company & Directors' Information:- E M AGRO (INDIA) PRIVATE LIMITED [Strike Off] CIN = U02001UP1997PTC022261

Company & Directors' Information:- J S AGRO PRIVATE LIMITED [Strike Off] CIN = U01300PB1993PTC013943

Company & Directors' Information:- A N AGRO PRIVATE LIMITED [Strike Off] CIN = U01119DL1996PTC081855

Company & Directors' Information:- V R L AGRO PRIVATE LIMITED [Strike Off] CIN = U85110KA1999PTC024717

Company & Directors' Information:- P. S. R. AGRO PRIVATE LIMITED [Active] CIN = U24248UP1974PTC004017

Company & Directors' Information:- O N AGRO PRIVATE LIMITED [Active] CIN = U74899DL1988PTC031986

Company & Directors' Information:- K R S AGRO PRIVATE LIMITED [Strike Off] CIN = U01400PN2011PTC141711

Company & Directors' Information:- J K AGRO PRIVATE LIMITED [Strike Off] CIN = U74900PY2011PTC002548

Company & Directors' Information:- W B S AGRO PRIVATE LIMITED [Active] CIN = U01122PB2003PTC025879

Company & Directors' Information:- G T M AGRO PRIVATE LIMITED [Strike Off] CIN = U01100MH2005PTC150816

Company & Directors' Information:- Y K AGRO PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U74999DL2013PTC250398

Company & Directors' Information:- N P M AGRO PRIVATE LIMITED [Strike Off] CIN = U15494DL2011PTC214942

Company & Directors' Information:- B L B AGRO PRIVATE LIMITED [Strike Off] CIN = U51200DL2012PTC244511

Company & Directors' Information:- D A AGRO PRIVATE LIMITED [Active] CIN = U74900DL2015PTC288168

Company & Directors' Information:- D. B. AGRO PRIVATE LIMITED [Active] CIN = U01100MP2010PTC025035

    CS(COMM) No. 822 of 2017

    Decided On, 25 February 2019

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE JAYANT NATH

    For the Plaintiff: Chander M. Lall, Sr. Advocate, H. Rajeshwari, Nancy Roy, Swapnil Gaur, Kumar Ghitranshu, Advocates. For the Defendant: Sudhir Chandra, Sr. Advocate, Zahid Shaikh, Nilesh Nayak, Advocates.



Judgment Text

Oral:

IA No. 17273/2018

This application is filed seeking condonation of delay of 282 days in filing of the replication.

Learned senior counsel for the defendant relies upon an order of a Coordinate Bench of this court in CS(COMM) 158/2017 titled as Kent RO Systems Ltd. & Anr. Vs. R.K. Goyal, dated 01.12.2017 to submit that a replication is also a pleading and the limitation period of 120 days would therefore apply. Since the period of 120 days is a mandatory provision, the present replication filed after 282 days cannot be taken on record.

The application is accordingly dismissed.

IA No.665/2018

1. This application is filed by the defendant under Order 7 Rule 11 CPC seeking rejection of the plaint. It is the plea of the applicant that the plaint has been filed seeking a decree of permanent injunction to restrain passing off of the trade dress, infringement of copyright, rendition of accounts, damages, etc. It is pleaded that the regarding the relief of infringement of copyright, mandatory provisions have not been pleaded in the plaint. It is pleaded that clearly there is no description given in the plaint of the author of the copyright and as to how the plaintiff claims title to the ownership of the copyright.

2. I have heard learned senior counsel for the parties.

3. Learned senior counsel for applicant/defendant has relied upon a judgment of a Coordinate Bench of this court in the case of Tech Plus Media Pvt. Ltd. vs. Jyoti Janda & Ors., 2014 Indlaw (Del) 2834 to contend that it was incumbent upon the plaintiff to disclose the author of the work and the agreement under which the author has made the plaintiff the owner of the said copyright. Based on this, it is pleaded that the plaintiff has to amend the plaint inasmuch as the said relief of infringement of copyright is not available to the plaintiff. Reliance is also placed on the statement of truth filed by the plaintiff to state that they have clearly stated that all the necessary documents and facts have been brought on record and hence, they cannot now seek to rely upon other documents and facts to claim the ownership of the copyright.

4. Learned senior counsel for the plaintiff has refuted the contentions. He has relied upon para 20 of the plaint to state that the necessary material averments have been made in the plaint.

5. I may look at para 20 of the plaint which reads as follows:-

“20. That, without prejudice to the submissions made above, The Plaintiff is the owner of the copyright in the artistic work in the drawings of the sugarcane harvester Austoft 4000 Series which is marketed and sold under the brand mark CASE-IH Austoft. The Plaintiff submits that the said artistic work was developed for the Plaintiff by its employees using its own resources. The artistic work being the 2-dimensional drawings in respect of the sugarcane harvester CASE IF Austoft-4000 series have devolved upon the Plaintiff through a series of amalgamations, mergers and acquisitions as stated earlier.......”

6. Hence, a clear averment is made in the plaint that the artistic work in question was developed for the plaintiff by its employee using its own resources.

7. Reference may also be had to Section 17 of the Copyright Act which reads as follows:-

“17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that—

............

(c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;..........”

8. A clear averment is made in the plaint that the employees of the plaintiff are the author of the work but the plaintiff is the first owner of the copyright.

9. The settled legal position is that for the purpose of adjudication of an application under Order 7 Rule 11 CPC, the court has to only look at the plaint and presume that the averments made in the plaint are correct.

10. Reference may be had to the judgment of this court in Tilak Raj Bhagat vs. Ranjit Kaur, 2012(V)AD (Delhi) 186 which held as follows:-

“5. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.”

11. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh & Ors. 198(2013) DLT 432 and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT 769.

12. Reference may also be had to a judgment of the Supreme Court in the case of Hardesh Ores Pvt. Ltd v. M/s Hede and Company 2007 (7) SCALE 348, noted as follows:

“21. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that “law within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint, in their entirety must be held to be correct.”

12. Hence for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint.

13. In my opinion, in the present case if it is presumed that the averments are correct, it cannot be said that the suit is filed without any cause of action. A clear cause of action in terms of Section 17 of the Copyright Act is spelt out.

14. That apart, the suit is filed seeking multiple reliefs including the relief of permanent injunction for passing off of the trade dress. There is no plea raised that this plea in the plaint also attracts Order 7 rule 11 CPC. It is well established that a plaint cannot be rejected in part by a civil court, while exercising its powers under Order 7 Rule 11. The rule was enunciated in Roop Lal Sathi v. Nachhattar Singh Gill, 1982 (3) SCC 487, where it was held by the Supreme Court that only a part of the plaint cannot be

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rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. The relevant para noted as follows: “27. ............... Where the plaint discloses no cause of action it is obligatory upon the Court to reject the plaint as a whole under Order VII, Rule II (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint: Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.......” 15. Merely because the plaintiff has a weak case or could have done a better task in drafting the pleadings would not be a ground to reject the plaint. It would be open for the defendant to raise these issues at an appropriate stage in the course of the suit. 16. The application is accordingly dismissed.
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