At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MS. JUSTICE MUKTA GUPTA
For the Appellant: Rajesh Banati with Vikram Bhatia, Advocates. For the Respondent: Ashish Kumar, Advocate.
For the reasons stated in the application 94 days delay in filing the appeal is condoned.
Application is allowed.
1. The respondents are served and appear through counsel as above.
2. The appellant is the plaintiff. The respondents are defendants No.1 and 2 in the suit.
3. Case pleaded by the plaintiff before the learned Single Judge was that it is the registered proprietor of the trademark OSLAX for pharmaceutical preparations Osmotic Laxative. It is pleaded that the trademark has been coined by taking the first two letters of the word 'Osmotic' and the first three letters of the word Laxative. It is pleaded that the product of the plaintiff has acquired reputation in the market. It is pleaded that the pharmaceutical preparation, as the name would suggest, is Osmotic Laxative. It is pleaded that on or around June, 2012, the plaintiff came across similar pharmaceutical product being manufactured by defendant No.2 and marketed by defendant No.1. The product was also Osmotic Laxative sold under the trademark OSTILAX. It is pleaded that an employee of the plaintiff named Chaman Singh Rana, when in employment, had promoted the defendant companies and had thereafter left the employment.
4. Pleading visual as well as phonetic similarity in the two marks OSLAX and OSTILAX, injunction was claimed against the defendants restraining them from manufacturing, storing, distributing and selling any product by the name of OSTILAX or any other similar trademark which was deceptively similar to the plaintiff's registered trademark OSLAX with respect to the pharmaceutical and medicinal preparation. Delivery of the infringing article and damages were prayed for.
5. Served with the summons in the suit as also in the application seeking interim injunction in which we find an interim order was passed restraining the defendants from manufacturing, selling the offending product in the market, the learned Single Judge was seized of the suit on December 04, 2014, at the stage when, in spite of being served nobody appeared for the defendants and thus neither the stage of completion of pleadings nor settlement of issues nor leading of evidence had reached. On December 04, 2014, the learned Single Judge proceeded to decree the suit in relation to infringement of the trademark and while so doing recorded that it was a fit case where the Court must exercise its discretion to pronounce judgment under Order 8, Rule 10 of the Code of Civil Procedure.
6. While doing so the suit was decreed in terms of prayer 'A' to 'C' but dismissed with respect to the claim for damages holding that there was no evidence.
7. There was an error apparent on the face of the order dated December 04, 2014 for the reason the Court had proceeded under Order 8, Rule 10 of the Code of Civil Procedure and thus the Court ought to have restrained itself to prayers 'A' to 'C'. The Court ought to have granted time to lead evidence on the issue of damages.
8. The plaintiff immediately filed Review Pet.No.36/2015 pointing out as aforesaid. The review application was dismissed vide order dated February 06 2015. The learned Single Judge has held that since the Court had exercised its discretion under Order 8, Rule 10 of the Code of Civil Procedure it was not inclined to review its decision dated December 04, 2014.
9. The error stands compounded by the reason given in the review petition, for the reason in a civil litigation if a party is able to make out a case for damages the Court has no discretion to say that it is not inclined to decide that issue. It is trite that where a relief claimed is discretionary, only then the Court can refuse to exercise its discretion. But even this power is hedged with the obligation of the Court to record the reasons why the Court is not exercising its discretion.
10. Under the circumstances the appeal is allowed. Impugned judgment and decree dated December 04, 2014, review whereof was declined on February 06, 2015, is modified, in that, maintaining the decree which is passed in favour of the appellant the decree declining rendition of accounts/damages is set aside.
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CS(OS) 2535/2012 is restored for limited adjudication concerning prayer 'D' and 'E' in the suit. 11. Since defendants are present through counsel, being respondents in the appeal, we notify the date to learned counsel to appear before the learned Single Judge when CS(OS) 2535/2012 would be listed for directions. The Registry shall list the suit for directions before the Roster Judge on September 07, 2015. 12. No costs. Ordered accordingly.